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The official blog of the National Center for Public Policy Research, covering news, current events and public policy from a conservative, free-market and pro-Constitution perspective.

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Congressional Action: Independent Judiciary

On July 18, Senator Max Baucus delivered a speech supporting a judiciary independent of other branches of government. It included the following story:

...President Eisenhower, who appointed Chief Justice Warren, tried to influence the Chief Justice on that landmark case. [Warren biographer Jim] Newton reports that during the period when the Court was considering Brown v. Board of Education, President Eisenhower invited Chief Justice Warren to join him at dinner with a number of guests. That was while that case was pending.

It turned out that President Eisenhower had also invited one of the lawyers for the Southern States in the Brown case.

As the President and Chief Justice stood up from the table -- this was dinner, remember, with one of the lawyers for the Southern States there, a private dinner, Chief Justice Warren was there, and President Eisenhower, who appointed Chief Justice Warren, was there -- as they stood up from the table, the President took the Chief Justice by the arm. The President motioned to others in the room and then whispered into the Chief Justice's ear: "These are not bad people."

The President told the Chief Justice that they were only concerned about their "sweet little girls" having to sit in school beside African-American children.

That is what President Eisenhower said at that dinner to Chief Justice Warren when Brown v. Board of Education was pending. So it mattered that we had a Chief Justice who was independent enough not to listen to the President who appointed him.

It mattered that Chief Justice Warren was independent enough to write for the majority:

We conclude that in the field of public education the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal...

Note: "Congressional Action" is a blog feature highlighting an an official activity undertaken by or in Congress, very often chosen at random, to provide an educational snapshot of our Congress at work.


Health of Supreme Court Justices: Is It Our Business?

There are a number of interesting questions raised in this Washington Post story about the health of Chief Justice William Rehnquist. The article raises other questions, but some that occur to me are:

* Is it ethical for the head of one of the three branches of our federal government to keep the public from knowing details of his serious medical disorders?

* Should a distinction be made between disorders that are purely physical versus those that are reasonably likely to affect his judgment (speaking purely hypothetically, a hip replacement versus growing memory loss)?

* Is it less important for the public to know the health status of the Chief Justice because he lacks the power to send troops to war?

* Since the public "sees" the President (on TV) and hears from him often, and pretty much every official move the President makes is followed and analyzed by the press, yet (for some reason) there is a zone of privacy around Supreme Court justices, does it actually become more important for a justice to affirmatively make public personal matters of potential public concern?

Personally, in questions of this nature I think public officials should err on the side of public disclosure.

Columnist Ellen Goodman wrote a piece on this issue last January. Although she and I do not share many political views, I agree with her on this one.


Congressional Action: Colin Powell Honored

On July 15, the Senate approved S. 1413, to rename the Federal building in Kingston, Jamaica, formerly known as the Crowne Plaza, as the "Colin L. Powell Residential Plaza."

The building is a staff housing facility for the United States mission in Jamaica.

The bill was sponsored by Senator Richard Lugar (R-IN) and co-sponsored by Senator Joe Biden (D-DE).

Note: "Congressional Action" is a blog feature highlighting an an official activity undertaken by or in Congress, very often chosen at random, to provide an educational snapshot of our Congress at work.


Social Security Reform Votes are Months Away

Apparently, there's still plenty of time to share your views about Social Security reform with Members of Congress:

Congress will not move on President Bush's desire to overhaul Social Security before this fall, key Republican leaders said Thursday.

"There are additional ideas relating to retirement savings building support within this House," House Majority Leader Tom DeLay of Texas said just minutes after the chamber recessed for the week. "I expect that the House will focus on these issues in the fall."

The announcement came several hours after senators cut short a planned Social Security strategy session, filing out of a Capitol meeting room for a series of votes without an agreement to return or when to meet again...


Congressional Action: Homeland Security Nomination

The Senate received from the White House the nomination of Stewart A. Baker of Virginia for the post of Assistant Secretary for Homeland Security.

According to The White House, Mr. Baker is presently a partner with Steptoe & Johnson, LLP in Washington, D.C. He previously served as General Counsel for the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction. Prior to that, Mr. Baker served as General Counsel for the National Security Agency. Earlier in his career, he was a law clerk for Justice John Paul Stevens, U.S. Supreme Court. Mr. Baker received his bachelor's degree from Brown University and his J.D. from the University of California, Los Angeles.

Note: "Congressional Action" is a new blog feature. It highlights an an official activity undertaken by or in Congress, very often chosen at random, to provide an educational snapshot of our Congress at work.


Regarding Gitmo Torture Allegations...

...if wearing a bra and being forced to stay awake 20 hours straight constitutes torture, 99 percent of all mothers of newborns qualify as torture victims.


Congressional Action: Avoiding Personal Agendas

Reverend Dr. Arnold B. Lovel of the Second Presbyterian Church in Knoxville offered a prayer at the start of the July 13 session of the House of Representatives:

Eternal Father, strong to save; throughout the centuries You have guided the hands, hearts, and lives of the founders, leaders, and citizens of this Nation. We invoke Your presence and power today for those upon whom the mantle of leadership has fallen. As the Members of Congress gather this day, give them courage, clarity of vision, and compassionate hearts, that in their frailty as human beings they might carry out the enormous task of service to which they have been called.

May the decisions made in the deliberations of this day be governed by the common good, virtue, and the principles of participation, affirming the equality that all men and women have before You, O God. Give our representatives strength and honesty to avoid the politics of personal agendas, power, and partisanship, that they might serve the public good. And may all glory be given unto You, Almighty God. Amen.

Note: "Congressional Action" is a new blog feature. It highlights an an official activity undertaken by or in Congress, very often chosen at random, to provide an educational snapshot of our Congress at work.


Women and Inexperienced People are OK for Court

This AP lead strikes me as a rather sexist:

President Bush said Wednesday that he would consider nominating a woman or someone with no experience as a judge to replace retiring Justice Sandra Day O'Connor...
Why toss women in with inexperienced people? And why is it newsworthy to mention women at all? Who besides the AP thought women weren't being considered?


Congratulations to Ron Nehring

Congratulations to former National Center staff member Ron Nehring, who who has been appointed to the California Board of Forestry and Fire Protection by Governor Arnold Schwarzenegger.

Says a statement released by the governor's office:

Ronald Nehring, 35, of El Cajon, has been appointed to the State Board of Forestry and Fire Protection. He has served as senior consultant for Americans for Tax Reform since 1998 and is currently a member of the Governing Board for Grossmont Union High School District. Nehring is also the vice-chairman of the California Republican Party. He was previously director of development and public affairs for the National Center for Public Policy Research. This position requires Senate confirmation and the compensation is $100 per diem. Nehring is a Republican.
Long-time readers of this blog will recall that, in 2003, I covered Ron's comments (here and here) regarding a major forest fire that came within a whisker of burning down his house (read the story and see photos here).

That particular fire played a major role in getting Rep. Scott McInnis of Colorado's Healthy Forests Restoration Act through Congress, in large part because former San Diego Mayor Roger Hedgecock, in easily some of the most riveting talk radio monologues I have ever heard, guest-hosted the Rush Limbaugh program and described how San Diego was all-but-surrounded by flames.

Though it doesn't cite Hedgecock or the Limbaugh program, a December 3, 2003 AP story seems to agree with my basic thesis:

Legislation aimed at speeding decisions on where to allow timbering in national forests had languished in Congress for three years until the recent fires in California, which burned 750,000 acres and destroyed 3,640 homes, forced a compromise.
As National Center Senior Fellow Dana Joel Gattuso, recently writes, however:
President Bush's 2002 Healthy Forests Initiative, a blueprint for protecting national forests from catastrophic fire, and the 2003 Healthy Forests Restoration Act were supposed to close a chapter on devastating fires. The new reforms promised to change the old, outdated laws that have restricted logging, causing a build up of dense fuel loads over the years and creating lethal fire conditions. They were to limit activist groups' endless appeals and frivolous lawsuits that have halted critical, time-sensitive thinning projects. They also were to fast-track treatment of forests by eliminating the time-consuming environmental review process for those thinning projects that do not threaten the environment.

But by all accounts, we're not out of the woods yet. Attempts at reform to shift priority to fire prevention are being challenged by a small yet fanatical group of eco-activist groups who argue thinning projects kill habitat and species.

Today, more acres of forests blanket this nation than in past decades (we grow more than we cut), supporting vast amounts of wildlife habitat and species once threatened by extinction. But the steady increase in forestland over the years also places them at enormous risk for fire. Over the past five years, wildfires have become more severe and widespread, harming human life, homes, air and water quality, and of course, wildlife.

The population of the northern spotted owl in the Northwest, for example, has declined despite a rise in the number of old growth forests and habitat. A new study by scientists at the Forest Service finds that wildfires are among the possible reasons for the endangered owl's waning numbers. Fires, the report concludes, have been a greater threat than logging projects.

Granted, it will take time to see the effects of the Act's and Initiative's new reforms. But in the meantime, activists' challenges to these measures have brought crucial thinning in high-risk forests to a standstill, threatening to ignite another season of unmanageable fires.

It looks like Ron Nehring and everyone else involved in preventing and fighting forest fires will have their work cut out for them. Good luck to all of them.

Addendum July 16: In the silliness category, this left-wing blog is calling on the California State Senate to refuse to confirm Ron Nehring's appointment, in part because Ron worked with the African-American leadership group Project 21. How does working with black conservatives reduce a person's ability to help develop sound forest policies? The silly leftie blogger also thinks anyone in the conservative movement is "guaranteed to vote the wrong way" on forest policies -- as if righties like seeing their houses burn down more than lefties do! (Some folks are just way too partisan.)


Congressional Action: Napa Valley Honors

Rep. Mike Thompson of California extended his remarks July 12 for the purpose of honoring a Mr. Angelo Regusci, who, Rep. Thompson says, has been named the 2005 Agriculturalist of the Year by the Napa County Farm Bureau.

The Regusci Winery, located in the Stags Leap District, is one of the Napa Valley's first wineries.

Note: "Congressional Action" is a new blog feature. It highlights an an official activity undertaken by or in Congress, very often chosen at random, to provide an educational snapshot of our Congress at work.


No FEC Regulation of Bloggers, Conservative Leaders Say

Jim Boulet of the group English First has organized a letter by conservative leaders to the FEC, urging the FEC not regulate what Americans say on their websites and blogs and in their e-mails.

Among other things, the letter says FEC regulation of bloggers would be "the equivalent of investigating a Silver Spring, Maryland, barbershop for an illegal corporate contribution because it displayed a 'Kerry for President' sign in its front window."


FEC Hears Bloggers' Bid to Share Media Exemption

A revealing excerpt can be found in a Washington Post story Tuesday about bloggers and the FEC:

"Bloggers want it both ways," said Carol Darr, head of the Institute for Politics, Democracy and the Internet at George Washington University. "They want to preserve their rights as political activists, donors and even fundraisers -- activities regulated by campaign finance laws -- yet, at the same time, enjoy the broad exemptions from the campaign finance laws afforded to traditional journalists."
There's a word for what this debate is about (freedom) and a simple way to end FEC-related conflicts (deregulate).


Protect Yourself from Terror Attacks

The Fox News Channel website has an interview posted with a terrorism expert, Juval Aviv, who predicts a terror attack on U.S. soil within the next 90 days.

Aviv has this advice for people who use mass transportation:

...have with you, a bottle of water, a small towel and a flashlight. What happened in London is exactly a point to look at. Those people who were close to the bombs died, then others were injured or died from inhaling the toxic fumes or getting trampled. The reason you take a bottle of water and a towel is that if you wet the towel and put it over your face, you can protect yourself against the fumes and get yourself out of there.
Aviv also advises:
Don't be bashful. If your gut feeling tells you when you walk onto a bus there is something unusual or suspicious, get out and walk away. You may do it 10 times for no reason, but there will be one time that saves your life. Let your sixth sense direct you.


Congressional Action: London Sympathies

The Senate, returning from recess, approved on July 11 S. Res. 193, a resolution introduced by Majority Leader Bill Frist expressing sympathy for the people of Great Britain following the terrorist attacks of July 7, 2005. The resolution was sponsored/co-sponsored by every member of the Senate.

Note: "Congressional Action" is a new education feature of this blog. It will highlight an an official activity undertaken by or in Congress, very often chosen at random, for the simple purpose of providing an educational snapshot of our Congress at work.


Arlen Specter's Weird Idea

This, from the New York Times, is weird:

Senator Arlen Specter, chairman of the Judiciary Committee, suggested on Sunday that President Bush could name Justice Sandra Day O'Connor, who is retiring from the Supreme Court, to the position of chief justice if it opens up.

"I think it would be very tempting if the president said to Justice O'Connor, 'You could help the country now,' " Mr. Specter, Republican of Pennsylvania and a pivotal player in any confirmation hearings, said in an interview on the CBS program Face the Nation. "She has received so much adulation that a confirmation proceeding would be more like a coronation, and she might be willing to stay on for a year or so."

How can Senator Specter hold the position he has and not realize that the right would oppose (tooth and nail) her confirmation? (And not just because it is his idea, as Senator Specter seemed to imply in the Washington Post.)

Second, how would it help the country? The Senator's suggestion that O'Connor could serve as Chief Justice for a year would mean two Chief Justice confirmation battles during President Bush's second term instead of one (IF the Chief Justice job happened to be vacant, which, at the time of the Senator's comment, it wasn't). Confirmation battles probably do serve a useful educational function (the press cries "woe is us" because they are "divisive," but let's be realistic -- they are a debate about ideas, not a battle with bullets), but I have the impression that Senator Specter was not thinking of that.

Third, O'Connor's resignation becomes effective at the time her successor is confirmed, so her replacement as associate justice would have to be confirmed before she could be appointed chief justice, anyway.

Finally, aside from Senator Specter, who really thinks President Bush is going to waste one of his Supreme Court nominations on a 75-year-old?


Originalism Defined

An e-mail from Barbara Ledeen:

As Senator Specter and others have attacked originalism or constitutionalism, it might be helpful for everybody to have this explanation. It comes from Judge Bork's opening statement to the Senate Judiciary Committee on September 15, 1987.
The judge's authority derives entirely from the fact that he is applying the law and not his personal values. That is why the American public accepts the decisions of its courts, accepts even decisions that nullify the laws a majority of the electorate or of their representatives voted for.

The judge, to deserve that trust and that authority, must be every bit as governed by law as is the Congress, the President, the state governors and legislatures, and the American people. No one, including a judge, can be above the law. Only in that way will justice be done and the freedom of Americans assured.

How should a judge go about finding the law? The only legitimate way, in my opinion, is by attempting to discern what those who made the law intended. The intentions of the lawmakers govern whether the lawmakers are the Congress of the United States enacting a statute or whether they are those who ratified our Constitution and its various amendments.

Where the words are precise and the facts simple, that is a relatively easy task. Where the words are general, as is the case with some of the most profound protections of our liberties-in the Bill of Rights and in the Civil War Amendments-the task is far more complex. It is to find the principle or value that was intended to be protected and to see that it is protected.

As I wrote in an opinion for our court, the judge's responsibility "is to discern how the Framers' values, defined in the context of the world they knew, apply in the world we know."

If a judge abandons intention as his guide, there is no law available to him and he begins to legislate a social agenda for the American people. That goes well beyond his legitimate power.

He or she then diminishes liberty instead of enhancing it. That is why I agree with Judge Learned Hand, one of the great jurists in our history, when he wrote that the judge's "authority and his immunity depend upon the assumption that he speaks with the mouths of others: The momentum of his utterances must be greater than any which his personal reputation and character can command if it is to do the work assigned to it-if it is to stand against the passionate resentments arising out of the interests he must frustrate."

To state that another way, the judge must speak with the authority of the past to the present.

The past, however, includes not only the intentions of those who first made the law, it also includes those past judges who interpreted it and applied it in prior cases. That is why a judge must have great respect for precedence. It is one thing as a legal theorist to criticize the reasoning of a prior decision, even to criticize it severely, as I have done. It is another and more serious thing altogether for a judge to ignore or overturn a prior decision. That requires much careful thought.

Times come, of course, when even a venerable precedent can and should be overruled. The primary example of a proper overruling is Brown against the Board of Education, the case which outlawed racial segregation accomplished by government action. Brown overturned the rule of separate but equal laid down 58 years before in Plessy against Ferguson. Yet Brown, delivered with the authority of a unanimous Court, was clearly correct and represents perhaps the greatest moral achievement of our constitutional law.

Nevertheless, overruling should be done sparingly and cautiously. Respect for precedent is a part of the great tradition of our law, just as is fidelity to the intent of those who ratified the Constitution and enacted our statutes. That does not mean that constitutional law is static. It will evolve as judges modify doctrine to meet new circumstances and new technologies. Thus, today we apply the First Amendment's guarantee of the freedom of the press to radio and television, and we apply to electronic surveillance the Fourth Amendment's guarantee of privacy for the individual against unreasonable searches of his or her home.

I can put the matter no better than I did in an opinion on my present court. Speaking of the judge's duty, I wrote:

"The important thing, the ultimate consideration, is the constitutional freedom that is given into our keeping. A judge who refuses to see new threats to an established constitutional value and hence provides a crabbed interpretation that robs a provision of its full, fair and reasonable meaning, fails in his judicial duty. That duty, I repeat, is to ensure that the powers and freedoms the Framers specified are made effective in today's circumstances."

But I should add to that passage that when a judge goes beyond this and reads entirely new values into the Constitution, values the Framers and the ratifiers did not put there, he deprives the people of their liberty. That liberty, which the Constitution clearly envisions, is the liberty of the people to set their own social agenda through the processes of democracy.

Conservative judges frustrated that process in the mid-1930s by using the concept they had invented, the Fourteenth Amendment's supposed guarantee of a liberty of contract, to strike down laws designed to protect workers and labor unions. That was wrong then and it would be wrong now.

My philosophy of judging, Mr. Chairman, as you pointed out, is neither liberal nor conservative. It is simply a philosophy of judging which gives the Constitution a full and fair interpretation but, where the Constitution is silent, leaves the policy struggles to the Congress, the President, the legislatures and executives of the 50 states, and to the American people.

I welcome this opportunity to come before the Committee and answer whatever questions the members may have. I am quite willing to discuss with you my judicial philosophy and the approach I take to deciding cases. I cannot, of course, commit myself as to how I might vote on any particular case and I know you would not wish me to do that.


Congratulations to Jay Timmons

Congratulations to National Center Board of Directors Member Jay Timmons, who has just been appointed senior vice president of policy at the National Association of Manufacturers, the nation's largest industrial trade association and easily one of the most influential organizations in Washington.

In his new position, Jay will lead the Association's policy and government affairs staff. According to a press release by the National Association of Manufacturers, this staff "develops positions on policy and economic issues in front of the Congress as well as those in the Executive Branch."

Jay previously served for 12 years as chief of staff to Senator and Governor George Allen of Virginia and served as executive director of the National Republican Senatorial Committee during the 2004 election cycle. Jay presently is employed by the Washington office of the Florida law firm Tew Cardenas LLP.

The National Association of Manufacturers is headed by former Michigan Governor John Engler.


We're All British Today


Rep. Richard Pombo Thinks We're "Far Right"? ... Surely Not

Americans frequently complain about the ugly state of public discourse -- but it's not all the politicians' doing. Tabloid-style journalism, which feeds on controversy, is a big part of the problem.

And I'm not just referring to the Washington Post and New York Times. Small hometown newspapers are in on the act.

Case in point is the Tracy Press in Tracy, California: The publication's readership can practically fit into the office of House Resources Committee Chairman Rep. Richard Pombo - and that may be where most of its readers are, anyway. The Tracy Press, you see, is Rep. Pombo's hometown newspaper.

(The Tracy Press actually has a circulation of around 10,000, but in the spirit of tabloid journalism, why let a little fact get in the way of a good story?)

On Monday, the Tracy Press ran a story with a quote from Richard Pombo's press secretary, Brian Kennedy, suggesting that The National Center for Public Policy Research - this organization - is part of the "far right."

Unless Rep. Pombo has had a complete conversion to the political left that we haven't heard about, or has gotten into some loco weed, we aren't buying the report.

After all, the Congressman wrote a glowing comment about The National Center for our 20th anniversary booklet. Rep. Pombo wrote the forward to one of our books. And Congressman Pombo was kind enough to sign a fundraising letter for us to support our efforts to stop a U.N. land grab.

We will disagree with Rep. Pombo from time-to-time, as we do with many politicians, but we have no reason to believe that we are at odds with the Congressman on the broader conservative agenda.

We also considered the source of the information: A publication with a pretty shoddy record for accuracy.

In our case, the Tracy Press has reported that we are both extreme libertarians and that we are in bed with the environmentalists. It has reported that we both support Rep. Pombo's efforts to amend and reauthorize the Endangered Species Act and that we oppose such efforts. It says we oppose "the existence of a drinking age" -- when what we actually oppose is the federal government's use of federal highway funds to bribe states into adopting 21 as the minimum legal drinking age. (I can't wait to read what our positions will be next.)

In short, think Washington Post with a crayon.

Our advice: Never assume a press story is right.


Luddites of the World Unite

The Tehran Times comes out against President Bush's position opposing the Kyoto global warming treaty.

I look forward to attending the first joint Mullah-enviromentalist press conference on global warming -- that is, if ladies are permitted to attend.