An Exciting Day for the Judicial Branch

This morning dawned with the Obama administration’s announcement of his nominee for Justice Souter’s replacement.  The well-managed leaks from the West Wing made sure Sonia Sotomayor’s name was already familiar in the press, but commentators have found plenty to discuss on air anyway.  It seems the old partisan battlelines are being drawn, though as some have said (including our very own Dr. John Mark Reynolds), the GOP would be wise to save its limited political capital for another fight.  There will be plenty of those!

Judge Sotomayor is a brilliant choice for Obama’s first nominee to the Supreme Court.  Though many on the Right will try to paint her as a radical liberal loose constructionist, her record shows Sotomayor is an experienced, methodical judge who painstakingly examines the intricacies of the law.  While she enthusiastically advocates an interpretation of the law that promotes equality in cases of race and gender discrimination, her ruling from the bench has demonstrated her work as a jurist who considers each case on its own terms.  She has frequently left idealism aside in order to reach a decision that accurately applies the principles of the law.

A lot will be said about comments Judge Sotomayor made at a 2005 panel discussion at Duke University Law School, which have been circulating on YouTube ever since her name was mentioned in a pool of likely candidates for nomination:

All of the legal defense funds out there, they’re looking for people with court-of-appeals experience, because it is – court of appeals is where policy is made.  I know this is on tape, and I should never say that, because we don’t make law, I know. [The audience laughs.] OK, I know, I know. I’m not promoting it, I’m not advocating it, I’m, you know. Um. OK.

It lacks eloquence, as off-the-cuff remarks often do, and seems to advocate unbridled judicial power.  The trouble with using this statement to prove Sotomayor is a radical revisionist who legislates from the bench is twofold.  First, her record simply doesn’t show that’s the case.  Second, it’s just a little civics 101.  Someone, usually the White House, proposes policy.  Congress enacts legislation to put that policy in action.  The Executive Branch, usually the bureaucracy, executes that policy.  But in the policymaking process, the courts determine what the law says.  That interpretation determines what the policy looks like in practice.  Instead of fearing a radical jurist, we should be delighted that a nominee to the Supreme Court recognizes that power and, so far, has cautiously exercised that power.  Let’s hope for a quick confirmation full of excellent debate over constitutional interpretation!

Of course, the more exciting judicial news of the day came around 10am Pacific time from the California Supreme Court.  In a six-to-one majority, the Court upheld the voter-approved ballot initiative to ban gay marriage, Proposition 8.  Immediately upon receiving the news, scores of protestors crowded the streets of San Francisco and other California cities, railing against the blow to human rights and calling the justices all manner of names.

Regardless of where you stand on gay marriage, however, you have to accept the legality of the situation.  The California Supreme Court wasn’t asked to rule on gay marriage at all.  In fact, its previous ruling on the subject, In re Marriage Cases in June of 2008, overturned voter initiative Proposition 22, a 2000 ballot initiative that defined marriage as the union of a man and a woman.  Likewise, the 2008 ruling precipitated Proposition 8, which amended California’s constitution to prevent same-sex marriage.  The question before the Court for today’s decision was simply whether or not the Constitution had been legally amended by voter initiative.  Was it an amendment, which the California constitution allows voters to determine in general election, or was it a revision, which is a legislative matter?

The question came to whether or not Proposition 8 was presented to voters in the right form, and whether or not it substantially changes the constitution’s equal protection provisions.  The Court decided today not for or against gay marriage, but that the authors of Prop 8 had done their homework while drafting the amendment.  Unfortunately, it was not in the Court’s jurisdiction to decide whether or not it’s idiotic to allow 50.1% of voters to substantially amend the state’s constitution.

Gay marriage proponents vow tonight that the fight isn’t over.  For now, in California, it seems it may be.  Much more substantial changes need to be made to the method of constitutional amendment, or a small percentage of the electorate must be convinced to overturn the amendment in the next election for anything to change.  After all, Prop 8 passed by a margin that was hardly decisive.  But even then, the fight won’t end here.  Ultimately, gay marriage is a federal issue, and must be decided by the Supreme Court.  It is the ‘full faith and credit’ clause, not any lingering moral code set forth by the Framers that pushes the argument into the Supreme Court’s jurisdiction.  And, it seems with the recent action on the issue in Iowa, Washington D.C., New York, and elsewhere, we won’t be able to ignore the federal battle for much longer.  The state initiatives are just a prelude to the moral conversation we must have on the issue.  Its outcome will determine who we are. ‘

The Courts and the Quest for Relevance

It was a good day for the American experiment, particularly for the least defined branch of the Federal Government.

Most notably, the first African American President nominated the first Latino woman to the bench of the Supreme Court.  More on this in a moment, but all patriots should feel affirmed in their faith in our Republic.  The system does work, and even the highest halls of government are open to our minorities.  Cynics everywhere should take note; things are not actually as bad as the failing newspapers suggest.  We are not in desperate straights; we do not require someone to save us.  While it would be foolish to suggest that there are no challenges to the cohesiveness of our society, it is equally foolish (and perhaps intentionally divisive) to insist that America is hopelessly divided by prejudice.

Only slightly less noteworthy is the news that the California Supreme Court upheld the will of the voters to legally define marriage as a relationship between a man and a woman.  Considering the battle that was waged over this issue last year, opponents and supporters alike should take heart; the court functioned as it was intended to, and did not assert it’s preferences in direct contradiction to the desires of the electorate.  The state voted and the issue was settled by the will of the people, and by a margin of 6 – 1 the court ruled that the people had the right to make this determination.

It was a landmark day, and one that Conservatives should reflect on as we launch into what looks to be quite a busy Summer.

The ramifications of President Obama’s choice for the replacement of Justice Souter are not earth-shattering.  It’s still early, but Justice Sotomayor looks to be an unsurprising pick from a President in a position to nominate and confirm almost anyone he fancied.  All accounts suggest that she’s a moderate Liberal judge, and is hardly a threat to all the last vestiges of Conservatism.  We could not have reasonably hoped for someone less liberal (in fact, her comparitively mild ideological stance is surprising, given that this is the President’s best opportunity to nominate and confirm a Justice of his choosing).  This is the natural result of losing an election, and there seems to be little sense in opposing it simply because it is not the Conservative choice.  Conservatives may be the Opposition Party at this point, but that hardly means we should oppose everything; a necessary step towards making our voices relevant in the marketplace once more is choosing carefully which debates we take on.

Giving Sotomayor a hard time because she’s the President’s choice would be a bad call.

Rather than taking up the clarion call for a battle we cannot win, we should focus on articulating the importance of the victory we have already achieved.  We should be happy that gay marriage was not legitimatized by the courts in California; however, we cannot assume that the matter is settled.  It is vitally important to understand the significance of this victory, and to figure out how to repeat it.  Conservative ideas, in this instance, persevered in the midst of a general rout of conservatism.  We achieved this unique accomplishment for three reasons: first, we made unexpected allies; second, we managed to frame the debate in terms that made our stance broadly acceptable; and third, we were able to use the rule of law to our best advantage.

The next round is already underway and the debate will rage on until it inevitably erupts onto the Federal stage (whether it should or not).  Conservatives will need to once again articulate why traditional marriage is a foundation stone to our society, and we will need to do it in a way that does not validate the argument that the issue stems from anti-gay bigotry.  Again, as the opposition party, it is necessary to pick our fights wisely and to conduct them with percision.  This is an issue worth pushing back on, and with the momentum from today’s victory we should begin to lay the ground work for the national discussion that will follow.

If Conservatism would win it’s way back into mainstream relevance, we must be prepared to offer reasonable, persuasive arguments to the nation for why we believe what we believe.  The time to start prepping for that challenge is now. ‘

Government & the People

Lang takes us to Lincoln; very apt, given my question.  After all, Lincoln vies with Washington for the top spot in the halls of our leaders, and rightfully so; they were the leaders whose individual tenacity and leadership created and preserved this union. 

Under their respective eras of leadership, our nation faced the most critical moments in our history, where survival and not merely prosperity hung in the balance.  As a result, and not coincidentally, our government also grew under their leadership in ways that changed the very nature of our experimental Republic.  Washington was the figure head of a new Federal government that laid the foundation to remove significant sovereign powers from the individual states.  Lincoln went to war with half the country, instituted the draft and suspended habeus corpus to preserve the Union Washington had fathered. 

Of the many similarities between these two statuesque statesmen, their stalwart guidance amidst crisis is the most notable.   Of course, that is the point; they led in times of crisis, and the power granted them was taken up as a last resort.  Government, under their watch, grew; for the good of the nation, for the sake of the people, some civil liberties were surrendered to the state.  It is hardly daring to suggest that it is better so, but it is worth noting; it was as a last resort that they wielded (and expanded) the power of the state to solve the problems we faced.

This is my preamble in answer to the question.  Our Government is a tool, used to provide an environment in which the liberties of our people may thrive, in which we may strive after prosperity and work to achieve individual success.   As such, it is dangerous to assign to the government the responsibility of championing the cause of equality for our citizens.  Equality of condition is not a guarantee amongst free men; only equal opportunity to pursue the condition of our choosing. 

Some will argue that the monumental spending of our new government, as well as the taxes levied to provide for it, are the necessary steps to provide that equal opportunity.  The trouble with this proposition is that these steps are radical, and hark-en back to the revolutionary actions taken by leaders in the midst of life and death struggles.  While our current prospects are grim, they have not yet ripened to full-blown disasters; yet our government would propel us forwards as if we were struggling to overcome our very death-throes.  This is not the careful leadership of a government intent on protecting the rights of the people, loathe to take up power lest it rob it’s citizens of the ability to determine their own best course; this is an expansive government eager to take from it’s citizens the ability to make mistakes, which will necessarily hamper our potential for success. 

If this Republic would weather the challenges we face, it would be wise to consider the examples of those leaders who faced real and difficult challenges to our continued survival; those who took up the power of the government as a last resort, who used it sparingly, knowing that once expanded, the government is nearly impossible to shrink.  It is wrecklessly rash to employ such an instrument as the solution to the social problems of health-care, education, and mortgages; yet this is almost prudent when compared with the disastrous policies that would allow the government to unlock the credit of the nation without accountability.  For liberty to remain the highest ideal in our nation, it must not be the default position of our government to envelope the burdens we the people face; it is for us to rise to the challenges we face.  Failure to shoulder this burden represents more than merely an inability to realize our potential or a stumble on the road to prosperity; relinquishing such sweeping power to the government, absent of an actual cataclysmic disaster, is a failure of the people to live up to the responsibility which accompanies the privilege of freedom.  Failures of this kind have produced tyrants, from Caesar & Bonaparte to Hitler & Stalin. 

If we would be free, we must remember that this Government is “for the people” and we are not for it. ‘

Take It From Lincoln

My esteemed colleague has posited the question of all questions: what is the purpose of government?  Nothing like a nice, light inquiry to start things here, eh?

I take the basic premise of my answer from the Gettysburg Address.  It seems to be a safe bet, to start.  After all, slap our 16th president’s name on the cover, and a history book will shoot to the bestseller list in a flash.  In seriousness, Lincoln delivered the most succinct, beautiful description of our government in one brief phrase.  Our government is ‘of the people, by the people, for the people.’

In order to appreciate its beauty, we have remember how it was delivered (according to eyewitness reports).  Today, even Disney’s late Great Moments with Mr. Lincoln presented it with the wrong emphasis.  We tend to focus on the prepositions, probably because they’re what changes and they automatically draw our attention.  But Mr. Lincoln didn’t deliver the speech that way.  He emphasized the most important part of the phrase: the repeated noun.

Government is of, by and for the people.  And I’m sure this isn’t a controversial statement on its surface.  But as I’ve explored its implications, I find it leads me into opposition with my conservative friends.  I understand the minimalist approach to government, that it exists solely to guarantee our security and freedom, and that it works best when it steps aside to allow people to be their best, unhindered by government intervention.  I agree that in some cases, this is the best possible role for the government to play.

But it’s not always the right role, and quite often, it’s the worst.

A government established of the people must take its orders from the people.  Their values must shape its actions.  While that requires a firm foundation that binds the people together as a community, it also requires a level of flexibility as that community grows and changes.  The America of 1789 is not the America of 2009.  That shouldn’t distress us too greatly.  We’ve rejected slavery, institutionalized misogyny, class-based elitism and many more evils.  It should distress us a little.  We’ve embraced evils our Framers never dreamed were possible, from abortion to the atom bomb.  But in all of this, our government still represents us, the living who live in the legacy of the past.  It’s the struggle to reject what’s bad of our past and embrace what’s good of our present that keeps its role in motion.

A government established by the people must act in the people’s best interest.  Sometimes that interest is to stand aside and wait to be called into action.  Sometimes, that role is to intervene, to defend its people not just from external threats, but also from themselves.  Lest you think I’m advocating an Orwellian Big Brother, let me clarify something.

Government works best when it encourages its people to be good.  Government can never take the place of the true source of Good, and cannot be trusted to define that Good either, but that is no excuse for government to remain morally neutral.  Just as it must step aside to allow religious organizations to act charitably without hindrance, it must intervene when strong members of society exploit the weak.  And it should never facilitate that exploitation.

And government is for the people.  Its purpose must be to facilitate the success of its citizens, financially, politically, personally – life, liberty and the pursuit of happiness (of course in the Aristotelian sense).  If government regulation hinders that success, it must be examined.  If its absence hinders that success, it deserves the same scrutiny.  The needs of the Wall Street executive must be tempered by the needs of the homeless veteran.  We can’t reject either for the sake of the other.

Because government isn’t an institution.  It’s people.  People designed its structure, and people enact its policies.  There’s nothing faceless about it.  It cannot stand aside and only intervene when faced with foreign invasion or the latest crime wave because government is the people.  And while it can’t take the place of a church when it comes to moral guidance, or a school when it comes to education, it can’t be separated from them either.  Our president attended our schools, and our congressmembers attend our churches.

So what is the purpose of government?

That’s a very good question. ‘

The Question Is…

I was given the honor of posting the first substantial contribution to our shiny new forum on Government, Politics and Faith…and promptly drew a blank.  Perhaps it was the result of the growing amount of work in other areas of my life, or perhaps it was the pressure of writing the FIRSTpost to attempt to live up to the high ideals we have laid out for this forum; regardless of the why, the result was the definite: no words would come. 

Finally an article about the Economy struck a chord, and I found words once again.  Although I did attempt to impart my thoughts on the current trend in California politics to embrace financial ruin in favor of continued government spending, since crafting that initial post I have had the opportunity to reflect on the grander vision for this blog.  While we don’t want to take ourselves too seriously, I think that Lang would agree with me when I say that I would like to see this experiment aspire to greater heights than another day-to-day political commentary blog.  Nothing against those forums (I read several of them), but there are plenty of those already, and it is our goal to accomplish something else here.  We want to examine the real differences between our political worldviews, especially as enlightened by our faith in the same Savior.  A certain amount of political commentary will necessarily be involved in such a discussion, but it will not be the scope of the discourse here held. 

With that in mind, I offer this as a restart, a better version of what should have been initially.  The Coke you ordered, rather than the Pepsi you were mistakenly given.  And to kick us off, I think it would be best to start at the very beginning, and address the elephant in the room by asking this question:

What is Government for, and what would such a vision look like in the America today? ‘