The "Greedy Clerks" debate: There is a fascinating--to me at least--debate currently going on over at the "Greedy Clerks" FindLaw Board. The debate started with another poster named "Joe Sanguine," who has since bowed out. I thought the debate might be of interest to this blog's readers, so I post it here for your reading pleasure (hopefully):

This is what started it all:

The board was discussing what judges look for in prospective judicial clerks:

CTA7:

You are missing the point. Many judges want to hire clerks who share their judicial philosophy, this certainly makes a difference in how smooth a chambers operates. Membership in the FS is a means by which to identify candidates who share that judge's philosophy.

Furthermore, I disagree that "95% of the issues are pretty clear cut." They would be if judges stuck to the plain meaning of statutes and regs, but many of them run off to the land of legislative history to manufacture the result they want.

Joe Sanguine:

(responding to my statement that "[t]hey would be if judges stuck to the plain meaning of statutes and regs, but many of them run off to the land of legislative history to manufacture the result they want")

See, e.g., Hans v. Louisiana, Seminole Tribe, etc. Oh, wait--the FS supports the results in those cases??? So much for "plain meaning," eh?

CTA7:

I am not going to debate someone who equates reading the Constitution in pari materia and in its historical context with resorting to legislative history to decide a case. That argument is beyond pathetic. You are smart enough to know that but obviously don't care.

Joe Sanguine:

Ah, the past couple of weeks have certainly been something, haven't they?

I learned a lot about the right wingers on the board a couple of weeks ago when cta7 posted the following:

"I am not going to debate someone who equates reading the Constitution in pari materia and in its historical context with resorting to legislative history to decide a case. That argument is beyond pathetic. You are smart enough to know that but obviously don't care."

I've been a little to busy to properly respond but the recent snowfall has disrupted my deposition schedule and given me some breathing space. So, to cta7:

"beyond pathetic"? Good grief. Let's see -- both "historical context" -- i.e., "original understanding" or "original intent" -- and "resorting to legislative history" are interpretive techniques whereby the interpreter goes beyond the plain meaning of the text to arrive at its operative meaning. They differ only in where beyond the text the interpreter looks. And while that difference may render one "better" or "more legitimate" than the other -- a point on which I express no opinion in this post -- that difference is insignificant when one considers the primary drawback of both approaches: it allows the interpreter to pick and choose among alleged sources of meaning until he finds something that supports a meaning he wishes the text to have.

Now, you might disagree with the previous paragraph. But "beyond pathetic"? To paraphrase Jeff Foxworthy -- "If you can't tell the difference between a position you disagree with and a position that's ridiculous, you might be an ideologue."

And as for the rest of the usual suspects who let this nonsense slide by: If you pick every nit with an argument for a position you disagree with but give a pass to the most egregious overstatements you do agree with, you might be an ideologue.

CTA7:

Joe-

I too have been busy. This is the first time that I've seen this post, and I will be happy to respond.

First, I stand by my statement.

Second, originalism is not an "interpretive technique[] whereby the interpreter goes beyond the plain meaning of the text to arrive at its operative meaning." This presumes that when the founders drafted, and the states ratified, the Constitution, they did so without regard to historical context. Read Ferrand's notes on the Constitutional Convention and Elliot's debates (covering the state ratification conventions), and you'll see that the vast majority of the Constitution's text is deeply rooted in history. Indeed, there are many terms of art in the Constitution that have hundreds of years of common law history behind them. It is this history that provides the objective parameters by which most constitutional questions can be resolved. The framers/states intended for this history to be taken into account when they wrote/ratified the Constitution. Thus, unlike modern day legislative history, the history underpinning the Constitution is the law.

Now, I agree that it is possible for someone to quote historical documents out of context--Jefferson's "Wall of Separation" letter to the N.C. baptist church is a perfect example. But when this occurs, another judge or scholar can call that person out and expose them for what the are, a fraud.

So, tell me again why it isn't beyond pathetic to compare reading the Constitution in pari materia and in its historical context with modern day legislative history.

Joe Sanguine:

Let's parse this out.

You begin with: "Originalism is not an 'interpretive technique[] whereby the interpreter goes beyond the plain meaning of the text to arrive at its operative meaning.'"

You then continue: "This presumes that when the founders drafted, and the states ratified, the Constitution, they did so without regard to historical context. Read Ferrand's notes on the Constitutional Convention and Elliot's debates (covering the state ratification conventions), and you'll see that the vast majority of the Constitution's text is deeply rooted in history." These statements do not support you thesis that originalism is not an interpretive technique whereby the interpreter goes beyond the plain meaning of the text to arrive at its operative meaning. To the contrary, they are a purported justification for exactly the sort of "going beyond" that I am talking about.

Even as such, your argument ultimately comes down to: "The framers/states INTENDED for this history to be taken into account when they wrote/ratified the Constitution." (my emphasis) And you derive this intent not from the text of the Constitution itself, but rather from the very sources you wish to use to "interpret" it. This is essentially the exercise undertaken by those resorting to legislative history to interpret a statute.

I could continue by comparing cases in which so-called "originalism" has been used to those in which legislative history has been uses to illustrate the similarity of the analyses, but that's beyond the point here. The point here is whether my comparison of the two techniques is "beyond pathetic." When you first used those words I simply assumed that you had let your emotions get the better of you. Now that I see that my assumption was mistaken (since you are "standing by" your statement weeks later) I'll let this series of posts stand and let readers draw their own conclusions regarding both the frivolousness of my comparison and your intellectual objectivity. The last word is yours.

CTA7:

Joe-

The "plain meaning" of the Constitution's text cannot be divorced from its historical underpinnings. Thus, while it is true that a judge must look to sources beyond the text to explain the text's meaning, that is not the same thing as "going beyond" the plain meaning of the text. The plain meaning of the text, to mean anything, must include the history that brought about its ratification. The text and history are one in the same, and together they comprise the law that is our Constitution.

Collateral Gestapo:

CTA7, anyone who spends their time arguing what Jefferson meant by his reference to a wall of separation is hopelessly lost. The question is whether we (read: USSC) want a wall of separation and, if so, whether the Constitution may be read to provide one. It is interesting what Jefferson may or may not have meant---a matter of historical interest. It is largely irrelevant to and certainly not a necessary element of Constitutional analysis.

Here's a hypo for you. Every legal historian of every political stripe agrees that the discovery of a critical document irrefutably demonstrates that the "framers" (will the real framers please stand up?) used the term "speech" in the 1stA to mean oral political advocacy and absolutely nothing else. Can Congress now ban Gabriel Garcia Marquez b/c they don't like the political implications of his fabulously written novels? Can I be jailed for praising his literary genius? Your resort to history for the "objective parameters" of Constitutional law could lead to no other conclusion. I hope for all our sakes that no one thinks so, and that somehow I've misunderstood you. I'm curious to find out. My Constitution would never allow someone to be jailed for praising a given author, and what Madison, Jefferson, or anyone else in the late-18th century may have thought couldn't matter less to me in that respect.

CTA7:

CG-

I don't think it is relevant whether we want a WOS, the sole question is whether the Constitution supports the Court's modern day establishment clause jurisprudence (1947-).

As for your hypo, I disagree that, as an original matter, the First Amendment only protects verbal communication. As Justice Story noted in his famous commentaries:

It is plum, then, that the language of this amendment imports no more, than that every man shall have a right to speak, write, and print his opinions upon any subject whatsoever, without any prior restraint, so always, that he does not injure any other person in his fights, person, property, or reputation; and so always, that he does not thereby disturb the public peace, or attempt to subvert the government.

Justice Scalia makes this same point in his book, A Matter of Interpretation.

This is my understanding of the general boundaries of the historical First Amendment, and I am quite confident that it is the majority view.

Thus, the conduct described in your hypo is clearly protected by the First Amendment.

And by the way, we all have the same Constitution, whether we like it or not.

Collateral Gestapo:

CTA7, that's why it was a HYPO (and intentionally extreme). One of the problems with history (at least the use to which you wish to put it), is that it is reinvented constantly. Remember, for thousands of years, Troy was as mythical as Atlantis. I did not suggest that the framers thought anything of speech, my question was "what if" that was their view. Or more to the point, "so what" if that was their view. There have, for example, been serious assertions that the 1stA was meant by the framers as a bar against prior restraint. Even if "true," i.e., even if you buy that version of the framers' (again, who are the framers?) beliefs, then they were bound by values that I reject and am entitled to reject as a matter of constitutional jurisprudence given the wording of the 1stA. What the framers may have thought may be relevant, it certainly is interesting, but it is not necessary. If we deem it necessary, then what happens when we do not know what they thought (which I think is the situation we are in fact in), or when we do not know their thoughts, or when our perspective of their thoughts is altered, e.g., by finding the new piece of historical evidence, or when we simply disagree as to what they thought? If you give any weight to "original intent" then the discovery I hypothesized in my earlier message would require that we reject much of our present 1stA jurisprudence and give up those illusory rights we mistakenly believed the framers meant to protect. I say to hell with what the framers thought if I can find the right in the Constitution and wish it to be there. Original intent is an empty vessel into which ideologues like Bork pour their own subjective values. Were it otherwise, it would remain at best a ham-fisted attempt to to "objectify" the unalterably subjective.

So I ask again that you respond to the new discovery hypothesized in my earlier post. What result? (as we heard so many times in law school). No one disagrees that this new evidence conclusively establishes the framers' view that the 1stA was to prohibit only legislation concerning oral political advocacy. We are pretending here. What do you do as a USSC judge when I challenge my imprisonment for having praised Marquez?

CTA7:

CG-

Whoops. Sorry about that. It was a little late in the day, and I wasn't sure whether your hypo included/assumed a substantive change in the law.

Assuming that the historical view was that the First Amendment only covered verbal communication, my position would remain the same. We are bound by the original understanding of the text, whether you care for the values of the framers or not. Congress and the States are always free to amend the Constitution. That's why many serious minded liberals are calling for a constitutional convention. They want to overhaul the Constitution to address their values. For the most part, I prefer the values of the framers; but I respect this crowd for their willingness to abide by the process outlined in the Constitution.

Moreover, your "who are the framers?" query is a little overplayed. Although there are unquestionably gray areas of the Constitution, the historical documents actually show a surprising amount of consensus among "framers", as well as those who came shortly after them (e.g., Story), on the meaning of the vast majority of the Constitution's text. Thus, even if a few documents were to surface with contrarian views on the meaning of certain constitutional provisions, I think it is stretching the bounds of hypo land to suggest that any historical discovery will fundamentally change the way we view most of the Constitution's text. Keep in mind that a great deal of our Constitution is derived from the English Bill of Rights and the common law. As I've already noted, a lot of the Constitution's text includes terms of art with hundreds of years of common law behind them.

And as for the gray areas, well that's why judges get paid the big bucks. Sometimes you gotta dig deep and try to glean, as best you can, the meaning of the text. But the fact that it's hard is no excuse for dipping into the penumbra pool. It always amazes me that jurists and so-called scholars who make crap up as they go along, i.e., the "Living Constitution" cognoscenti, are hailed as intellectuals, while originalists are viewed as simple minded. See, e.g., your statement "I say to hell with what the framers thought if I can find the right in the Constitution and wish it to be there."). That's not law, bro. That's anarchy, or, at the very least, rule by judicial fiat. And I am not a fan of that "system". You need to cut down on your Clash CD collection, and try some Toby Keith. Puttin' a boot in a terrorist's ass sounds like fun to me. :)

Finally, where the meaning of constitutional text is less than clear, it should be give a limited interpretation. As Scalia would say, box that beeyatch in. The Constitution was not meant to address every problem or societal ill. Most issues were mean to be left to the States. Ah yes, sweet federalism. But the incorporation doctrine, which I hate with every fiber of my being, and the Seventeenth Amendment (direction election of senators), which I also have little love for, changed everything (for the worse). Now we are ruled by an all powerful federal government (BTW: thanks for the job Uncle Sam), and many times by nine judges, who often impose a one-size-fits-all answer on a country whose regions are strikingly different. I bet federalism sounds a lot better to many of you liberals now that the Federalist Society is running the country (and the world!--sinister laugh). Want to ban guns in California? Have at it. Want abortion on demand in Massachusetts? Go for it. Gay marriage in Vermont. That's not my bag, but hey it's your state. But don't impose your "values" on the states like Alabama, Georgia, Mississippi, etc. Let them be. That's the great thing about federalism. It gives the states, and thus the people, the power to experiment at the local level. It promotes competition of ideas and values. Some will win and others will lose. But people will be able to vote with their feet, and that's a system I like. I call it freedom.

[And another gent enters the fray]

Montgomery Burns:

Ok, I just want to get your views straight here. Under your interpretive method, had the 19th Amendment never been passed, and states continued to deprive women of the right to vote, then the federal courts could not use the 14th Amendment, whose text plainly applies: "nor deny to any person within its jurisdiction the equal protection of the laws," to strike down laws depriving women of the right to vote, because is no historical evidence that when the framers of the 14th Amendment passed it they meant the equal protection clause to have that application? Why couldn't equal protection guarantee the right? Because a woman was not considered a "person" for the purposes of the clause in the 1860s? You've got to be kidding me.

CTA7:

MB-

O.k., let's keep things simple. Let's assume that the equal protection clause was only meant to apply to men (which, by the way, is probably true). If that is true then no the EPC of the 14th Amend. could not be used to strike down laws depriving women of the right to vote.

Look, all of this may sound radical to you people, but here's a news flash: the Constitution can be amended. Moreover, it is simply not the role of the judiciary to create law, even if the end result serves a noble cause. That is the role of the legislature, be it state or federal.

The fact that I take this position does not mean that I hate women or civil rights. I am against lawlessness.

Collateral Gestapo:
MB, I would pitch in with you on this one, but I am currently serving hard time for lauding the literary works of authors whom the majoritarian branch deems subversive.

CTA7, my problem is with your premise that textaulism and original intent are somehow "objective." I say I find whatever right the language of the Constitution conceivably affords. You say that is not law, it is judicial fiat. Choosing textualism and original intent as interpretive models is, in the first instance, no less a matter of fiat than my choice to do otherwise---they both are choices that lead to predictable outcomes. And we haven't even begun to scrutinize these methods in their application. I understand the comfort folks like you derive from knowing that we are governed by laws and not by men. It is a nice theory. It also has never been true, and by the very nature of humanity (or human-ness), never can be. The results judges reach should be justifiable, but you are dreaming if you think they are achieved by the objective application of big-L "Law" to the facts presented a court (in which case I suggest Bill Gates redirect his energies toward a judicial supercomputer that could save the gov't a helluva lot of money on judge and clerk salaries). We should finish this over a beer, but I think I'm a bit south of you for that.

CTA7:

CG-

I think we will have to finish this debate one day over drinks (perhaps a nice bottle of Southern whiskey). Nevertheless, I will pass along these parting thoughts:

I do believe that originalism, when applied honestly, is an objective method (indeed, the only objective method) of constitutional interpretation. As I have stated before, the framers and the states drafted and ratified the Constitution understanding that the words they used had a certain range of meaning. That meaning can generally be gleaned by looking at the historical documents that the founders/framers used to construct the Constitution. And while it is true that some provisions of the Constitution have less historical support than others, many have a rich history that provides the parameters from which we must operate. These historical documents do not reflect my views on anything, and thus can hardly be categorized as subjective. Is it possible that a radical right wing judge could selectively quote a historical document out of context to support a bastardized view of the First Amendment? Sure. But I am quite confident that such a view would not withstand scrutiny (thanks to smart people like you), and would eventually be cast into the judicial dustbin of history. The problem that I have with your line of argument is that you assume that there is no historical truth when it comes to the Constitution. That may be true in some instances, but in many cases historical documents show that there was a consensus view among the men of that time as to what the Constitution meant. You don't believe that. I do. And therein lies the rub.

I've enjoyed it.

Draft Al Gore!: Count me in.

Bad idea, governor: The Atlanta Journal Constitution is reporting that Gov. Sonny Perdue (R-GA) has asked former President Carter to help bring the state together as it considers changing the state flag. Carter isn't exactly a repository of wisdom, and his recent comments regarding the inevitable war in Iraq border on being traitorous.

Mister Rogers, RIP: Thanks for the childhood memories, kind soul.

Three new links, check 'em out: Occasionally, I run a google search on my blog to see what pops up. These three blogs--CrimLaw, Quidnunc, and Overtaken--have all linked to Southern Appeal. I paid each of them a visit and was quite impressed with what I read. I encourage all three of this blog's regular readers (that means you too, mom) to stop by each of them for a spell.

I also noticed that one site--Technorati--listed Southern Appeal as one of the "Top 50 Interesting Recent Blogs With Context" at some point (the rankings change daily). That's kinda cool. I am not sure who is doing the ranking, but thanks!

The Federalist Society's Conspiracy to take over the world: Uh oh. Someone found out the truth about us.

Pickering, Estrada, and now Cook: The ultra left wing New York Times is targeting yet another Bush judicial nominee. This time it's Ohio State Supreme Court Justice Deborah Cook, who President Bush nominated to the U.S. Court of Appeals for the Sixth Circuit in May 2001. Lawrence Solum, of the Legal Theory Blog, explains why the N.Y. Times's objections to Cook are phony. The people who know Cook best are in her favor, but such was the case with Pickering. In my opinion, the old gray lady has lost all credibility. But I am sure Ralph Neas is happy with the paper's performance.

For more leftist propaganda on the Cook nomination see:

Alliance for Justice Judicial Selection Project

National Council of Jewish Women

People for the (Un)American Way

NARAL

National Employment Lawyers Association

I always knew Dennis Miller was a conservative: NRO's The Corner offers these excerpts from Miller's performance last night on Leno:

DENNIS MILLER ON THE FRENCH [Rod Dreher]

"You'd better gas up the dinghy and go fishing with Fredo, because you are dead to me." -- Dennis Miller, on the Tonight Show.

Miller was on fire tonight. He said: "If you're at a peace march, and the guy next to you has a sign saying 'Bush is Hitler,' stop the peace stuff for a second and beat his ass."

And he sent this message to Dubya: "If you're watching, I think you're doing a hell of a job. I'm proud you're my president. ...I think there are a lot more people out here on your side than you may think."

Ad Blitz for Estrada: Republicans are mounting a radio talk show blitz today in support of Miguel Estrada.

Gods and Generals: I am quite busy today, but I wanted to put up a brief post to say how much I enjoyed the movie "Gods and Generals." It was, in a word, brilliant. I doubt that I will ever see its equal. Robert Duvall was wonderful as General Robert E. Lee, and Stephen Lang gives an Oscar caliber performance as General Thomas "Stonewall" Jackson. I got chills when Lang (as Jackson) shouts "You are (pause) the first brigade!" If you did not see G&G over the weekend, please see it sometime soon. It is, quite simply, a cinematic masterpiece. You will not regret it.

And while I am on the topic, what does it say about American society that G&G only took in $4.8 million in its opening weekend and "Old School" took in $17.5 million. Don't get me wrong, I love Will Ferrell, but give me a freakin' break. If you want to read some reviews on G&G, many of which are complete crap, click here. It seems that the lefties don't care much for historical accuracy.

Update: Here is an excellent review of G&G and its critics from NRO.

Judge Posner rips Justice Douglas a new one, postmortem: Here is just a sample of Posner's book review of Wild Bill: The Legend and Life of William O. Douglas by Bruce Allen Murphy:

Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice who regularly left the Court for his summer vacation weeks before the term ended. Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless--at once a big spender, a tightwad, and a sponge--who, while he was serving as a justice, received a substantial salary from a foundation established and controlled by a shady Las Vegas businessman.

Ouch! That there smarts.

Give 'em hell Zell!: Fox News is reporting that Sen. Zell Miller (D-GA) will announce today that he will be a lead co-sponsor of President Bush's $674 billion economic plan, making him the first Democrat to throw his support behind the economic stimulus package. As a conservative Republican, and a former resident of Georgia, I appreciate his stand. I do wonder though whether he will get in trouble for uttering the following phrase: "Who are we to pick and choose and select and cull and single out among our taxpayers? Who are we to play eeny, meany, miney, mo with our taxpayers?" If you have no idea what I'm talking about, click here. Let's see if any dems pick up on this one.

The liberal argument against Roe: Here is one liberal who's hoping Roe v. Wade will take its rightful place next to Plessy v. Ferguson and Dred Scott v. Sandford.

The Angry Clam: This law student is going places. Check out his blog here.

The Georgia flag flap: Before moving to the midwest to clerk for a federal judge, I spent a few years in Georgia practicing law. During that time period, I was actively involved in the state Republican party and got to know newly elected Gov. Sonny Perdue. Gov. Perdue is a godly man, and I have no doubt that he will serve Georgia with honor and distinction. He is, unfortunately, being forced to clean up the mess former Gov. Roy Barnes made when he used an enormous amount of his political capital to change the state's flag in January 2001. The pre-2001 flag was adopted by the Georgia General Assembly in 1956 and incorporated the Confederate Battle Flag (to see the flag click here). The new Georgia flag is, in a word, hideous (click here to see the new state flag). Although many Georgians agree that the 1956 flag needed to be retired, they also deeply resent the new flag due to the manner in which it was adopted. Indeed, this is the reason Gov. Perdue voted against changing the flag as a state senator. During his campaign for governor, Perdue indicated that he would support a state referendum on the flag, the details of which he recently outlined. Next year, Georgia voters will vote on whether they want to change the current state flag, and if so, they will then be asked to choose between the 1956 flag or its predecessor (which does not incorporate the emblem associated with the Confederate battle flag) (click here to view the pre-1956 flag). Some prominent Georgia business leaders are opposing the referendum on the basis that the flag issue is divisive. They may be right, but the bottom line is that an overwhelming majority of Georgia's citizens want an opportunity to vote on the issue. According to a recent Atlanta Journal Constitution poll, 67 percent of Georgians said it was "very important" or "somewhat important" that voters decide the issue. The poll also found that 41 percent favor keeping the current flag, 23 percent want to return to the 1956 banner, and 28 percent prefer another alternative. In other words, a majority of Georgians are NOT for readopting the 1956 flag but don't care for the 2001 version either.

I am guessing that none of this makes any sense to those of you who are not from Georgia or the South, so allow me to explain the behavior of my people. First, a significant percentage of the Southern population is deeply passionate about Southern heritage and culture, and I include myself in that group. Within this community, there are people who simply cannot understand why anyone would be offended by the Confederate Battle Flag and others (like myself) who recognize that for several years dumb inbreed racist bastards have used the flag as a symbol of their hatred for African Americans and other minorities. I am, quite frankly, baffled by those who fall into the former camp.

To say that African Americans are simply being oversensitive when they raise objections to the Confederate Battle Flag is both condescending and morally offensive. Thus, while I view the flag as a symbol of courage and valor, I also completely understand why my African American friends do not. This is why many Georgians (including myself) are in favor of returning to the pre-1956 flag, a flag that pays homage to the valor of the men who fought and died for Georgia in the War Between the States without offending the black population of the state; and is a much better looking flag to boot. There is, however, a vocal band of "flaggers" who have made it their mission in life to get the state's flag changed back to the 1956 version. If this group is really concerned about preserving Southern heritage, rather than further dividing the state among racial lines, I hope they will join me in voting for a flag that all Georgians can take pride in. I truly believe this is the position General Robert E. Lee, the standard bearer for all Southern gentlemen, would advocate were he alive today. In any event, this is a Georgia issue that should and will be decided by the citizens of the state. I, unlike others, have faith that Georgians will do the right thing.

Global warming schmobel warming: The chicken little crowd is awful quiet these days.

This time next Friday, I plan on being in a movie theater: On February 21, 2003, the long awaited movie "Gods and Generals" will be released. I encourage all of Southern Appeal's visitors to go see the movie. Here is a link to the web site promoting the movie.

The dems' racist filibuster of Estrada: Before you dismiss this assertion out of hand, let's define the key term: racism. The Oxford English Dictionary defines racism as "the theory that distinctive human characteristics and abilities are determined by race." Webster's, as one of two definitions, notes that racism is "racial prejudice or discrimination." Now, before proceeding any further, let me be clear: I do not believe that the Democrats who have chosen to filibuster Miguel Estrada's nomination to the D.C. Circuit do so because they believe his ethnic background makes him an inherently inferior candidate. This is the type of racism that most people think of when the term racist is used, but, in my opinion, there are very few people left in American society who fit this bill--i.e., who automatically discount the abilities of another individual based solely on race. I know that a few of these idiots are running around, but they're the exception to the rule.

The most prevalent type of racism at work in society today is much more subtle, and the dems' current filibuster provides an excellent opportunity to shine a light on it. The modern day racist believes that people should be identified and defined by their race. The modern day racist judges the "blackness" of an African American by whether he ascribes to a certain set of liberal political values. If an African American disagrees with these values, he is immediately labeled an "Uncle Tom." See, e.g., Justice Clarence Thomas. This is the type of racism being employed by the dems filibustering Miguel Estrada's nomination. They know he is qualified, and although they don't particularly care for his conservative judicial views that is not their primary reason for opposing him. The dems are scared to death of Estrada because he is a conservative Hispanic, and, unlike black voters, the Hispanic community--judging by recent voting trends--is much more sympathetic to the values and ideas of the Republican Party. This scares the hell out of the dems. The dems believe that they are entitled to minority vote as their birthright, and they'll be damned if Republicans are going to get any significant support from the Hispanic community.

The dems are also frightened at the prospect of Estrada being nominated to the Supreme Court one day. I think they're scared of "Justice Estrada" for two reasons: (1) his judicial philosophy is akin to Justices Scalia and Thomas; and (2) they have not been able to demonize him (a la Thomas) so as to marginalize his effectiveness as a Hispanic role model. Estrada's life is an American success story, and the dems would rather keep that out of the public eye. Who knows, little Hispanic children might want to grow up to emulate Estrada, accept his conservative views and values, and (shudder) vote Republican.

So, to my Hispanic friends I say this: you should view the dems' opposition to the nomination of Miguel Estrada for what it is, a threat. The dems are sending Hispanics a message: if you don't think the way we want you to think, we will not let you advance in American society. How sad. How very frightening.

Libertarians, Republicans without morals: This WSJ op ed piece succinctly explains why I am not a libertarian.

Things are looking good for Estrada: Two positive posts from NRO's "The Corner":

LOOKING GOOD FOR ESTRADA [Byron York]
Senate Republicans are encouraged by developments in the battle over the appeals-court nomination of Miguel Estrada. One encouraging sign for Estrada's supporters is that very few Democrats took to the Senate floor to denounce Estrada yesterday. For the most part, the senators who spoke out about Estrada were the usual suspects from the Judiciary Committee -- Leahy, Schumer, and Kennedy. In fact, other than Minority Whip Harry Reid, Sen. Carl Levin was the only non-committee Democrat to discuss the nomination. In contrast, Republicans not only turned out their committee members -- Hatch, Sessions, and Kyl -- but also heard from non-committee senators like Jim Bunning, Mike Enzi, Wayne Allard, and George Allen.

Estrada's supporters believe that today will be a critical day in the conflict. Democrats are scheduled to have their weekly party lunch at 12:30 today, and it is expected that they will emerge with a decision on whether or not they will formally filibuster the nomination. Some Republicans believe Democrats simply do not have the support within their caucus to mount a filibuster, and that Minority Leader Tom Daschle will reach that conclusion after today's lunch.

So far, the numbers are not definitive, but are somewhat encouraging for Estrada. Democrats need 41 votes to sustain a filibuster. They have 49 members, including the allegedly independent Jim Jeffords. Three Democrats -- Breaux, Nelson, and Miller -- have said they will vote for Estrada. A fourth, Mary Landrieu has not announced her decision, but Republicans are circulating the text of a Spanish-language ad from her recent re-election campaign in which she boasted of supporting Estrada. If she goes with Estrada, that leaves a pool of 45 Democrats from which Daschle has to find 41 willing to support a filibuster. Given the small number of Democrats who have so far been willing to go onto the Senate floor to publicly discuss the nomination, reaching 41 appears to be a daunting task for Estrada's opponents.

More will be known at about 2:00 today, after the party lunch.

LANDRIEU ON ESTRADA [John J. Miller]
Byron mentions Mary Landrieu's 2002 campaign ad targeting Hispanics. Here's the text (in translation), according to the email GOPers are sending around: "We need a Senator that serves our community better, so we have better teachers and can offer our children a better education. We need a senator that understands the needs of our community, economy, culture and society. Mary Landrieu has worked close to the Hispanic Community. Immediately following the destruction of Hurricane Mitch in Nicaragua and Honduras, Mary Landrieu was the first representative of the US to visit Honduras and involve herself with the relief effort for those affected by the hurricane and she obtained 11 million dollars in support of the affected families. Mary Landrieu ALSO SUPPORTED THE CANDIDACY OF THE HONDURAN MIGUEL ESTRADA FOR THE FEDERAL COURT OF APPEALS. Mary Landrieu has always been close to our community, she has grown, socialized and worked along our side. An announcement paid for by friends of Mary Landrieu."

Estrada commercial: Things are heating up in the Estrada confirmation battle. The Committee for Justice, a conservative non-profit whose mission "is to defend and promote President Bush's judicial nominees by highlighting and countering the partisan warfare that has emerged in the judicial selection process," is running a commercial in support of Estrada that is extremely effective. Has does your own medicine taste, dems?

A interesting article on Justice Thomas: This is an older piece on Thomas that I found while browsing the Washington Post's web site. The article notes that "[i]n his home office, Thomas has a kneeler, and before writing opinions he prays. 'He really thinks there needs to be inspiration from a greater being,' says a friend, 'that man should be humble in his approach to the Constitution.'"

Justice Thomas is Papa Bush's greatest legacy; Souter his worst.

Why I might send Rev. Al some money: Sharpton's candidacy causes the dems to tremble in fear.

Chief Justice Janice Brown?: Newsweek has this report.

Why Stuart Buck rules: I have always enjoyed Stuart Buck's blog, The Buck Stops Here. He is brilliant fella and an excellent writer to boot. And now I know that he is extremely clever as well. "Mr. Buck" recently paid a visit to the People for the (Un)American Way's web site, and noticed that the organization offered to allow visitors to send free faxes to their senators urging them to filibuster Miguel Estrada's nomination to the D.C. Circuit. He also noticed that the message could be edited by the sender if he so desired. Buck then used this complementary service to send the following free fax to his senator:

I write to strongly urge you NOT to join the Democrats' planned filibuster to block the confirmation of Miguel Estrada to the Circuit Court of Appeals for the District of Columbia. Estrada is a wonderful nominee, with stellar credentials and a record that would be the envy of practically any lawyer. Please do not join your colleagues in this obstructionist and foolish course of conduct.

I am faxing you, by the way, using the website of the People for the American Way, who kindly provided the option of altering the pro-filibuster text that they had scripted.

I did it as well. Thank you Mr. Buck. You are a credit to the "cause."

Happy Birthday President Reagan!: The Gipper turns 92.

Highlights from the Estrada vote: The debate on Estrada's nomination has started. Here is the link.

Updates:

Hatch's long winded speech is over, and Leahy is now addressing the Senate.

Leahy is accusing the Republicans of being insensitive--i.e., holding the vote shortly after the space shuttle tragedy.

Leahy is losing it. He is melting down before our very eyes.

I cannot believe that Leahy is questioning whether Estrada has an adequate background to serve as a judge.

Now, Leahy is suggesting that Estrada is in favor of locking up the Japanese and pro-slavery.

Oh, I get it. The Puerto Rican Legal Defense Fund is now the "gold standard" for evaluating judicial nominees. What happened to the ABA?

Leahy just called Estrada an uppity Hispanic.

O.k., new drinking game. Every time Leahy says "unite" or "divide" we all take a shot 'o whiskey.

Leahy just implied that conservative white males should be excluded from the definition of diversity.

Hatch is back, and Chuckie Schumer is on deck.

Whoops, my bad. Specter is holding court right now.

Chuckie is now speaking. He hates originalism but he wants everyone to read the Federalist Papers.

How can Chuckie accuse President Bush of promising moderate judges when Bush held up Scalia and Thomas as his favorite Supreme Court justices during the 2000 presidential campaign?

Schumer: "The Constitution is a beautiful work of art"--as long as we (liberals) can make it say whatever we want.

Schumer: "He wouldn't answer my questions. So I am going to take my ball and go home."

Schumer: "We don't know anything about him, but we know he's too conservative."

Schumer: "The Federalist Society is waaaay over to the far right." Thanks for the plug, Chuckie.

O.k., I've got to get some dinner. Visit the Greedy Clerks Board for more running commentary.

Looks like the dems will filibuster Estrada's nomination: Fox News has this report.

Move over Harry Potter, there's a new invisibility cloak in town: This is really cool.

Are Penumbra lovers a minority group within the legal community?: The American Constitution Society for Law and Public Policy, the judicial left's answer to the Federalist Society, claims, in its mission statement, that "[w]e want to counter the dominant vision of American law today, a narrow conservative vision that lacks appropriate regard for the ways in which the law affects people's lives." I don't mean to nitpick, but since when did originalism/textualism, which is what I assume the ACS means by "a narrow conservative vision [of the law]," become "the dominant vision of American law today." It is not the dominant vision on the Supreme Court, the "inferior" federal courts, or the state courts. And it sure as heck isn't the dominant vision in law schools. But who knows, maybe I missed the memo.

Random thought of the day: "To focus on technique [i.e., human relations skills as opposed to character] is like cramming your way through school. You sometimes get by, perhaps even get good grades, but if you don't pay the price day in and day out, you never achieve true mastery of the subjects you study or develop an educated mind . . . . The price must be paid and the process followed. You reap what you sow; there is no shortcut." Stephen R. Covey, "The 7 Habits of Highly Effective People: Powerful Lessons in Personal Change."

List 'o feeder judges: THE George Washington Law School has a list of the top Supreme Court feeder judges. So if you are interested in eventually clerking for one of the Supremes, and have credentials that won't make any of the Court's current clerks roll over laughing, you may want to check it out. (Via a mad tea-party)

And here's some helpful information from the University of Michigan Law School on obtaining judicial clerkships. You may also want to search the archive posts on the Greedy Clerks Board, which I have found to be the best insider's guide to judicial clerkships available.

Schumer threatens to filibuster Estrada's nomination: The Washington Times is reporting that Charles E. Schumer (D-N.Y.) has threatened to filibuster Miguel Estrada's nomination to the D.C. Circuit Court of Appeals, which is scheduled for a vote before the full Senate at 2:15 p.m. tomorrow. According to the article, conservative activist Kay Daly, a spokeswoman for the Coalition for a Fair Judiciary, responded to this threat by stating: "Ralph Neas (head of People for the Un-American Way), if you are out there and you want to filibuster Miguel Estrada, bring it on." My sentiments exactly. Neas is pleading for such a filibuster on PFAW's web site, and has referred to Estrada in the past as "the Hispanic Clarence Thomas." How I pray he is right.

Google as a weapon?: This article considers the "dark side" of the well known search engine.