Jay Reding.com

Jonah Goldberg has a perceptive column about the peril of judicial activism based on the recent Supreme Court ruling on capital punishment, Baze v. Rees, 553 U. S. ____ (2008). In a separate concurrence, Justice John Paul Stevens makes an argument that demonstrates a profound disrespect for the rule of law in this country:

In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.” Furman, 408 U. S., at 312 (White, J., concurring).

(Emphasis mine)

Now, Justice Stevens does not dispute that Supreme Court precedent makes it quite clear that the death penalty is constitutional. And indeed, one can make a perfectly legitimate argument that the Supreme Court got it wrong and that the death penalty is a violation of the Eighth Amendment’s ban on “cruel and unusual” punishment. Such an argument is almost certainly wrong and is unlikely to prevail, but it’s not an unreasonable argument to make.

Justice Scalia points out what is unreasonable about Justice Stevens’ argument:

As JUSTICE STEVENS explains, “‘objective evidence, though of great importance, [does] not wholly determine the controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.’” Ante, at 14 (quoting Atkins v. Virginia, 536 U.S. 304, 312 (2002); emphasis added; some internal quotation marks omitted). “I have relied on my own experience in reaching the conclusion that the imposition of the death penalty” is unconstitutional. Ante, at 17 (emphasis added).

Purer expression cannot be found of the principle of rule by judicial fiat. In the face of JUSTICE STEVENS’ experience, the experience of all others is, it appears, of little consequence. The experience of the state legislatures and the Congress—who retain the death penalty as a form of punishment—is dismissed as “the product of habit and inattention rather than an acceptable deliberative process.” Ante, at 8. The experience of social scientists whose
studies indicate that the death penalty deters crime is relegated to a footnote. Ante, at 10, n. 13. The experience of fellow citizens who support the death penalty is described, with only the most thinly veiled condemnation, as stemming from a “thirst for vengeance.” Ante, at 11. It is JUSTICE STEVENS’ experience that reigns over all.

This is about as sharp a criticism as you’ll find between Supreme Court justices. Goldberg puts it all into context:

Supreme Court justices must “solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as a justice of the Supreme Court of the United States under the Constitution and laws of the United States, so help me God.”

Note the bit about doing right to poor and rich alike. Feeling sorry for the poor guy who violates the Constitution or the law has no role in how a Supreme Court justice is supposed to make a decision. Legislators can write laws based on empathy. They can invoke their pet theories about “how the world works.” They can even, as Justices Stephen Breyer and Ruth Bader Ginsberg are fond of doing, consult foreign laws and court decisions in their efforts to make a more perfect union. But Supreme Court justices are supposed to decide what the written law requires, not pick winners and losers based upon some sense of noblesse oblige. That’s why all of those statues of Lady Justice show her standing blindfolded, not bent over kissing the boo-boos of the unfortunate and the downtrodden.

In a very real sense, this election year we face the question: Do we want to live in a monarchy or a nation of laws? Is this to be a country where justices serve as a reliable backstop against encroachments upon the constitutional order, or is this to be a country where the most undemocratic branch of government serves as the tip of the spear for such intrusions?

The judiciary is supposed to be “the least dangerous branch” of government. The proper role of judges in our democratic system is not to make law, but to decide what the law is. That means that judges are supposed to be inherently limited to working with the text of the Constitution and statutes. The Supreme Court is not supposed to be a roving agent of justice that goes looking to right problems. That is the role of the legislature, a body which is directly accountable to the people.

If we have a system in which the judiciary can start overturning the rules of democratically-elected representatives based not on the Constitution, but on their own feelings then we have become not a democracy, but an enlightened despotism. Such power is too easily abused, which is why the Founders of this nation specifically did not want that to happen.

This nation is based upon the rule of law, not the rule of men (or women). Justice Stevens may be entirely right that the death penalty doesn’t work, but as Justice Scalia rightly observes, that is a question for the legislature, not the courts. Our system of justice must never be allowed to become a replacement for our system of government, and Justice Stevens’ comments displays exactly the sort of imperialist thinking that harms the rule of law in this country.

The story of these hilariously violent animations is the subject of this Wired article.

The AP reports that John McCain has been able to consolidate the Republican base and is even winning some independents and Democrats as well:

Partly thanks to an increasingly likable image, the Republican presidential candidate has pulled even with the two Democrats still brawling for their party’s nomination, according to an Associated Press-Yahoo news poll released Thursday. Just five months ago — before either party had winnowed its field — the survey showed people preferred sending an unnamed Democrat over a Republican to the White House by 13 percentage points.

Of those who have moved toward McCain, about two-thirds voted for President Bush in 2004 but are now unhappy with him, including many independents who lean Republican. The remaining one-third usually support Democrats but like McCain anyway.

This isn’t all that surprising—McCain has always had strong appeal with independents and some Democrats. In an election season where the Democratic Party is deeply and bitterly divided McCain’s strength among conservative Democrats and independents may be his greatest single asset.

Of course, McCain cannot just rest on his laurels. The American electorate needs a candidate who can provide real solutions to our problems. Sen. McCain must take the lead on healthcare, the environment, fuel prices, and the war. His plan to offer a “gas tax holiday” this summer is the sort of populist plan that could have broad appeal, but Republican policymakers need to do more than offer various tax credits. McCain’s already come out with some promising policy positions on issues like taxes and the environment, but he needs to do more. There’s plenty of time to do that (and that can’t really happen until the Democrats stop sucking all the oxygen out of the room), but it has to be done.

With the GOP base supporting McCain, he can start to reach out to independents at a time when the Democrats are fighting over the liberal base. In a year where the GOP “brand” is hardly in good shape, McCain’s “maverick” cred is extremely helpful. However, McCain will have to walk a tight line between appealing to independents without alienating conservatives. The fact that he’s running against two dyed-in-the-wool liberals will help him, but it won’t get him into office. Make no mistake, even though McCain is in a very strong position right now, this will be a long, hard fight. McCain will need to take some strong substantive positions on key issues, which he so far has not done. The American middle class is worried, and McCain needs to be able to speak to those worries and give them something to vote on other than biography.

David Brooks defends ABC News from the attacks over last night’s Democratic debate:

I understand the complaints, but I thought the questions were excellent. The journalist’s job is to make politicians uncomfortable, to explore evasions, contradictions and vulnerabilities. Almost every question tonight did that. The candidates each looked foolish at times, but that’s their own fault.

We may not like it, but issues like Jeremiah Wright, flag lapels and the Tuzla airport will be important in the fall. Remember how George H.W. Bush toured flag factories to expose Michael Dukakis. It’s legitimate to see how the candidates will respond to these sorts of symbolic issues.

The middle section of the debate, meanwhile, was stupendous. Those could be the most important 30 minutes of this entire campaign, for reasons I will explain in point two:

Second, Obama and Clinton were completely irresponsible. As the first President Bush discovered, it is simply irresponsible statesmanship (and stupid politics) to make blanket pledges to win votes. Both candidates did that on vital issues.

Brooks is right on that. When Clinton and Obama did discuss substance, they didn’t help themselves. For one, Barack Obama admitted A) that capital gains tax cuts raise revenue to the government but B) he’d raise taxes on capital gains anyway. So the point of the tax system is no not to generate revenue, but to punish people for being successful? That’s exactly the sort of message that Democrats don’t want the American public to hear. It undercuts their own major policy arguments that the real purpose why the Democrats have an undying love affair with taxes is because government is chronically underfunded. Obama just admitted in front of everyone that he doesn’t care if a tax increase would reduce revenue, he’d still be for it. That’s a message that we’ll be hearing in GOP attack ads this summer.

Clinton doesn’t exactly have much to crow about either:

Both promised to not raise taxes on those making less than $200,000 or $250,000 a year. They both just emasculated their domestic programs. Returning the rich to their Clinton-era tax rates will yield, at best, $40 billion a year in revenue. It’s impossible to fund a health care plan, let alone anything else, with that kind of money. The consequences are clear: if elected they will have to break their pledge, and thus destroy their credibility, or run a minimalist administration.

The chances of either Democrat running a minimalist administration are roughly the same as Mira Sorvino showing up at my door holding a winning lottery ticket and plane tickets to Tahiti for two. It just isn’t going to happen. So how are the Democrats going to fund universal health care, more funding for virtually everything (except the military) and not raise taxes on more than just the “rich?” The good money is on “they won’t.” The only way to fund all these billions of dollars in goodies is by reaching into all of our pockets to do so.

Brooks sees electability as a problem for the Democrats, but he’s still bullish on Obama. To win the nomination, for sure it’s virtually sure to be Obama. But if Sen. Obama keeps floundering like this when being asked tough questions, all the sycophantic media coverage in the world won’t save him. It’s understandable why the Democrats are flocking to Obama—but at the same time perhaps they should be less quick to shoot the messenger and start taking a hard look at who Barack Obama really is.

By the hostile reactions from the usual suspects. How dare they ask serious questions about Obama’s past associations with Weather Underground terrorist Bill Ayers or his association with the radicalism of Pastor Wright! They should have been lobbing softballs about how “universal” Obama’s healthcare plan will be!

Over at The Campaign Spot, Jim Geraghty wonders if Hillary Clinton didn’t knock Obama off his pedestal. Fat chance of that. To most of Obama’s supporters, Obama is the nominee, and Hillary has no right to compete even though Hillary has an at least plausible chance at winning the popular vote and neither candidate can win without appealing to the superdelegates. The reaction to last night’s debate is what I though it would be: it isn’t that Hillary Clinton has been telling Democrats that Obama is going to get creamed in the general, it’s that Hillary should stand aside and let Obama get creamed in the general. Sen. Clinton came perilously close to making that case last night, but never quite went there.

To be honest, Republicans should be exceedingly happy if Obama gets the nomination. Hillary Clinton could win the states that the Democrats need to win to take the White House. Obama has a ton of charisma, but is hampered by a total lack of experience, plenty of skeletons in his closet, and a tendency to actually say what he thinks. Geraghty is right, Team McCain should be very glad that the Democrats are embracing Obama, because the more they fixate on him the less willing they are to see his flaws.

UPDATE: Mitch Berg takes a rhetorical brickbat to the debate.

Even though the whole “bitter-gate” brouhaha is starting to become old news, there are two perspectives on the scandal worth examining. The first comes from Jonah Goldberg, who sees this as less about “elitism” and more about Obama’s distorted worldview:

I agree with Rich entirely. I don’t mind him saying that small town blue collar workers are bitter over lost jobs. I think that’s objectively true in some cases and perfectly defensible as a general statement. The offending word here is “cling.” It’s a word drenched in haughtiness and condescension. We cling to rocks when we are caught in a current. Obama’s imagery suggests that because the economic tide is receding these people are clinging to God and guns, presumably to compensate for the undertow. But he also suggests that if the economic tide were rising these same people would let go of God and guns and ride the currents to happier and more progressive lands where everyone thinks like Obama. In his telling Pennsylvania was once Belgium on the Susquehanna — cheese parties, Sam Harris book clubs etc — and it can be again if only these people get good enough jobs to lay down their guns and bibles. As just about everyone has observed by now, this is a fundamentally Marxist way of looking at the world and Obama deserves to be called on it.

Goldberg defends “elitism” (more on that later), but does a good job of arguing that the real substance here is not that Obama is an elite, but that he’s an elite with a condescending attitude towards Middle America.

On a similar vein, former McCain 2000 communications director Dan Schnur has an interesting squib in The New York Times on the same issue:

The more important issue than Senator Obama’s choice of words, though, is the world view underneath them. By using a voter’s adverse economic circumstances to rationalize his cultural beliefs, Barack Obama has reintroduced what has been a defining question in American politics for more than a generation: Why do so many working-class voters cast their ballots on social and values-based issues like gun ownership, abortion and same-sex marriage rather than on economic policy prescriptions?

These voters — known as “the silent majority” in the 1970s, as “Reagan Democrats” in the ’80s, and as “values voters” during the last two election cycles — have long been one of the most sought-after prizes in national elections. But with the exception of the occasional Southerner on the ticket, Democratic presidential candidates and their advisers have been continually vexed by the unwillingness of blue-collar Americans to more reliably vote their economic interests.

In his book “What’s the Matter With Kansas? How Conservatives Won the Heart of America,” Thomas Frank articulates essentially the same case that Senator Obama has made in recent days. Mr. Frank complains that Republicans have deceived blue-collar Kansans — and their colleagues in other states — into voting against their own economic interests by distracting them into a conversation about traditional values and cultural concerns. Both Senator Obama and Mr. Frank seem to be saying that economic policy should be more important to voters than social and cultural questions. . . .

The mistake that Senator Obama and Mr. Frank both make is that they assume that only the values of culturally conservative voters require justification. An environmentally conscious, pro-stem cell bond trader who votes Democratic is lauded for selflessness and open-mindedness. A gun-owning, church-going factory worker who supports Republican candidates, on the other hand, must be the victim of partisan deception. This double standard is at the heart of the Democratic challenge in national elections: rather than diminish these cultural beliefs as a byproduct of economic discomfort, a more experienced and open-minded candidate would recognize and respect the foundations on which these values are based.

That analysis is exactly right. The issue is that Barack Obama is an elite. We want leaders to be elites. The issue is that Barack Obama is an elitist. We don’t want our leaders to think that because they are elites that they have the right to rule over the rest of us. Again, this goes back to the American values observed by de Tocqueville 200 years ago: Americans are deeply (small-d) democratic. There’s a reason why we tend to elect Presidents we’d like to have a beer with: because we have an ingrained suspicion of aristocracy and people who put on aristocratic airs. The last President to display such values was probably John F. Kennedy and he barely won, and then only one because of his immense personal charisma. Obama is at least superficially like Kennedy, but Kennedy never insulted the voters he needed to win over as Obama did.

Schnur gets it right: what Democrats must understand is that social voters aren’t voting irrationally, they simply have different priorities. The successful Democrats in the last few years have almost always won when they’ve at least acknowledged and accepted the concerns of values voters. Even setting aside the major argument that Democratic economic policies are really good for the American workers, the Democrats can’t win if they’re not willing to engage with values voters on their own level. Condescending to them hasn’t worked in the past and it won’t work now. People don’t believe in God, go hunting, or worry about this country’s culture because they’re worried about their economic prospects and feel disengaged from politics, they care about those things because to them those things are truly important.

Goldberg’s crack about Obama having a Marxist worldview isn’t that far off the mark. The Democrats are looking at this election through the lens of economic determinism, and Obama’s comments are to the effect that he really believes that “religion is the opiate of the people.” It may certainly be true that voters are feeling bitter—but if the Democrats think that patronizing them will make them any less bitter, they should fully expect not to have any chance of winning some of the key states they’ll need to take the White House in 2008.

Kurt Denke is the owner of a company that makes connection cables for audio/visual equipment. Monster Cable is a company that sells ridiculously-priced connection cables for audio/visual equipment. Monster Cable decided to send a cease-and-desist letter to Mr. Denke’s company.

Monster Cable didn’t realize that Mr. Denke was a lawyer.

This is the response they got to their claim of patent infringement.

Let’s just say that Monster Cable is probably wishing that they’d never sent that letter:

After graduating from the University of Pennsylvania Law School in 1985, I spent nineteen years in litigation practice, with a focus upon federal litigation involving large damages and complex issues. My first seven years were spent primarily on the defense side, where I developed an intense frustration with insurance carriers who would settle meritless claims for nuisance value when the better long-term view would have been to fight against vexatious litigation as a matter of principle. In plaintiffs’ practice, likewise, I was always a strong advocate of standing upon principle and taking cases all the way to judgment, even when substantial offers of settlement were on the table. I am “uncompromising” in the most literal sense of the word. If Monster Cable proceeds with litigation against me I will pursue the same merits-driven approach; I do not compromise with bullies and I would rather spend fifty thousand dollars on defense than give you a dollar of unmerited settlement funds. As for signing a licensing agreement for intellectual property which I have not infringed: that will not happen, under any circumstances, whether it makes economic sense or not.

I say this because my observation has been that Monster Cable typically operates in a hit-and-run fashion. Your client threatens litigation, expecting the victim to panic and plead for mercy; and what follows is a quickie negotiation session that ends with payment and a licensing agreement. Your client then uses this collection of licensing agreements to convince others under similar threat to accede to its demands. Let me be clear about this: there are only two ways for you to get anything out of me. You will either need to (1) convince me that I have infringed, or (2) obtain a final judgment to that effect from a court of competent jurisdiction. It may be that my inability to see the pragmatic value of settling frivolous claims is a deep character flaw, and I am sure a few of the insurance carriers for whom I have done work have seen it that way; but it is how I have done business for the last quarter-century and you are not going to change my mind. If you sue me, the case will go to judgment, and I will hold the court’s attention upon the merits of your claims–or, to speak more precisely, the absence of merit from your claims–from start to finish. Not only am I unintimidated by litigation; I sometimes rather miss it.

Corporate counsel should take note: if you’re going to send a cease-and-desist letter to someone, it’s a good idea to first make sure that you actually have a good-faith case, and second, it’s probably a good idea to make sure that the person you’re threatening isn’t a better lawyer than you are.

(Via Slashdot.)