Archives: May, 2009

Judge Sonia Sotomayor’s Philosophy of Judging

Judge Sonia Sotomayor of the 2nd Circuit Court of Appeals has been mentioned as a possible Supreme Court nominee.  She also has been caught on tape explaining her view of a judge’s role.  Reports the Washington Post:

As White House press secretary Robert Gibbs put it, Obama is looking for “somebody who understands how being a judge affects Americans’ everyday lives.”

Congressional conservatives have reacted anxiously to that qualification, fearing that it means a nominee who is more interested in making the law than in interpreting it.

One possible candidate for the seat, Judge Sonia Sotomayor of the U.S. Court of Appeals for the 2nd Circuit, appeared to walk close to that line in a video that emerged yesterday. Sotomayor would be the first Latino and the third woman to serve on the high court.

Speaking at Duke University in 2005, Sotomayor said, “All of the legal defense funds out there, they’re looking for people with court of appeals experience” because “the court of appeals is where policy is made.”

She then sought to soften the statement, adding lightly, “I know this is on tape and I should never say that, because we don’t make law, I know. Um, okay. I know. I’m not promoting it, I’m not advocating it.” The audience laughed as she brushed off the statement, perhaps sarcastically.

Making policy.  Yes, it is indisputable that that’s what judges often do.  But is that what they are supposed to do? 

President Barack Obama seems to think so, when he talks about the importance of “empathy” in judges.  (With whom do I empathize in this First Amendment case:  the U.S. Attorney General or the New York Times?  I vote for the Times!)  However, the Senate might want to debate this issue before approving someone to fill Justice David Souter’s vacancy, especially if the nominee shares the president’s apparent view that empathy is a substitute for jurisprudence in interpreting the law and Constitution.

Amazing Coincidences

The coincidences that occur in Washington, D.C. are truly extraordinary.  According to the Washington Post:

The headquarters of Murtech, in a low-slung, bland building in a Glen Burnie business park, has its blinds drawn tight and few signs of life. On several days of visits, a handful of cars sit in the parking lot, and no trucks arrive at the 10 loading bays at the back of the building.

Yet last year, Murtech received $4 million in Pentagon work, all of it without competition, for a variety of warehousing and engineering services. With its long corridor of sparsely occupied offices and an unmanned reception area, Murtech’s most striking feature is its owner – Robert C. Murtha Jr., 49. He is the nephew of Rep. John P. Murtha, the Pennsylvania Democrat who has significant sway over the Defense Department’s spending as chairman of the House Appropriations defense subcommittee.

Robert Murtha said he is not at liberty to discuss in detail what his company does, but for four years it has subsisted on defense contracts, according to records and interviews. He said Murtech’s 17 employees “provide necessary logistical support” to Pentagon testing programs that focus on detecting chemical, biological, radiological and nuclear threats, “and that’s about as far as I feel comfortable going.” Giving more details could provide important clues to terrorist plotters, he said.

Murtha said he does not advertise being the nephew of John Murtha and considers it “unfortunate” that some will unfairly assume Murtech received its federal contracts because of his uncle’s influence at the Pentagon.

“If we’re not doing our job well, we wouldn’t be doing our job,” he said. “I’m successful at the work I do because of the skill sets I have… . You don’t know how good someone is unless you work with them.”

A spokesman at Murtha’s office did not return calls seeking comment. The lawmaker, a former Marine, has said in the past that he is proud of his family’s service to the military and the government.

Over the years, John Murtha has proudly claimed credit for using his Appropriations Committee seat to steer hundreds of millions in Pentagon work to companies in his district, many of them fledgling enterprises run by campaign contributors. His influence also may be seen in the military improvements at the Johnstown airport that bears his name. The little-used commuter airport doubles as a wartime preparedness facility for the Pentagon after $30 million in improvements.

Murtha’s power has had beneficial effects within his family. His brother, Robert C. “Kit” Murtha, built a longtime lobbying practice around clients seeking defense funds through the Appropriations Committee and became one of the top members of KSA, a lobbying firm whose contractor clients often received multimillion-dollar earmarks directed through the committee chairman.

Of course there is no relationship between Rep. John Murtha’s position and the taxpayer money collected by his relatives.  Still, it is amazing how things like this just seem to happen when Capitol Hill gets involved.

Questions for Heritage: REAL ID

The Heritage Foundation’s “The Foundry” blog has a post up called “Questions for Secretary Napolitano: Real ID.”

Honest advocates on two sides of an issue can come to almost perfectly opposite views, and this provides an example, because I find the post confused, wrong, or misleading in nearly every respect.

Let’s give it a brief fisking. Below, the language from the post is in italics, and my comments are in roman text:

Does the Obama Administration support the implementation of the Real ID Act?

(Hope not … .)

Congress has passed two bills that set Real ID standards for driver’s licenses in all U.S. jurisdictions.

REAL ID was a federal law that Congress passed in haste as an attachment to a military spending bill in early 2005. To me, “REAL ID standards” are the standards in the REAL ID Act. I’m not sure what other bill the post refers to.

Given the legitimate fear of REAL ID creating a federal national ID database, section 547 of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 barred the creation of a new federal database or federal access to state databases with the funds in that bill. (Thus, these things will be done with other funds later.)

The Court Security Improvement Act allowed federal judges and Supreme Court Justices to withhold their addresses from the REAL ID database system, evidently because the courts don’t believe the databases would be secure.

And in the last Congress, bills were introduced to repeal REAL ID in both the House and Senate. Congress has been backing away from REAL ID since it was rammed through, with Senators like Joe Lieberman (I-CT) calling REAL ID unworkable.

It’s unclear what the import of the sentence is, but if it’s trying to convey that there is a settled consensus around the REAL ID law, that is not supported by its treatment in Congress.

The Real ID legislation does not create a federal identification card, but it does set minimum security standards for driver’s licenses.

This sentence is correct, but deceptive.

REAL ID sets federal standards for state identification cards and drivers’ licenses, refusing them federal acceptance if they don’t meet these standards. Among those standards is uniformity in the data elements and a nationally standardized machine readable technology. Interoperable databases and easily scanned cards mean that state-issued cards would be the functional equivalent of a federally issued card.

People won’t be fooled if their national ID cards have the flags of their home states on them. When I testified to the Michigan legislature in 2007, I parodied the argument that a state-issued card is not a national ID card: “My car didn’t hit you — the bumper did!”

All states have either agreed to comply with these standards or have applied for an extension of the deadline.

It’s true that all states have either moved toward complying or not, but that’s not very informative. What matters is that a dozen states have passed legislation barring their own participation in the national ID plan. A couple of states received deadline extensions from the Department of Homeland Security despite refusing to ask for them. Things are not going well for REAL ID.

Secure identification cards will make fraudulent documents more difficult to obtain and will also simplify employers’ efforts to check documents when verifying employer eligibility.

It’s true that REAL ID would make it a little bit harder to get - or actually to use - fraudulent documents, because it would add some very expensive checks into the processes states use when they issue cards.

It’s not secure identification cards that make fraudulent documents harder to obtain - the author of this post has the security problems jumbled. But, worse, he or she excludes mentioning that a national ID makes it more valuable to use fraudulent documents. When a thing is made harder to do, but proportionally more valuable to do, you’ll see more of it. REAL ID is not a recipe for a secure identity system; it’s a recipe for a more expensive and invasive, but less secure identity system.

Speaking of invasive, this sentence is a confession that REAL ID is meant to facilitate background checks on American workers before they can work. This is a process I wrote about in a paper subtitled “Franz Kafka’s Solution to Illegal Immigration.” The dream of easy federal background checks on all American workers will never materialize, and we wouldn’t want that power in the hands of the federal government even if we could have it.

Real ID is a sensible protection against identify fraud.

The Department of Homeland Security’s own economic analysis of REAL ID noted that only 28% of all reported incidents of identity theft in 2005 required the presentation of an identification document like a driver’s license. And it said REAL ID would reduce those frauds “only to the extent that the [REAL ID] rulemaking leads to incidental and required use of REAL ID documents in everyday transactions, which is an impact that also depends on decisions made by State and local governments and the private sector.”

Translation: REAL ID would have a small, but speculative effect on identity fraud.

Congress is set to introduce legislation next week that could largely repeal the Real ID.

The bill I’ve seen is structured just like REAL ID was, and it requires states to create a national ID just like REAL ID did. REAL ID is dying, but the bill would revive REAL ID, trying to give it a different name.

Some groups oppose this version of REAL ID because it takes longer to drive all Americans into a national ID system and frustrates their plans to do background checks on all American workers. But it’s still the REAL ID Act’s basic plan for a national ID.

The Administration should put pressure on Congress to ensure that this legislation does not effectively eliminate the Real ID standards.

Why the administration would pressure Congress to maintain the national ID law in place - by any name - is beyond me. REAL ID is unworkable, unwanted, and unfixable.

Homeland Security Secretary Janet Napolitano signed legislation as Arizona’s governor to reject the REAL ID Act. Her predecessor at DHS, Michael Chertoff, talked tough about implementing the law but came up just shy of lighting the paper bag in which he left it on Napolitano’s doorstep.

The REAL ID revival bill that is being so widely discussed is likely to be both the national ID plan that so many states have already rejected and deeply unsatisfying to the anti-immigrant crowd. Congress rarely fails to grasp a lose-lose opportunity like this, so I expect it will be introduced and to see it’s sponsors award themselves a great deal of self-congratulations for their courageous work. You can expect that to receive a fisking here too.

One Step Closer to Gambling Online?

Following on from the mildly good news of a few weeks ago, Barney Frank (D, MA) has announced that he will introduce a bill tomorrow to roll back current restrictions on gambling online (the restrictions are made operative by bans on U.S. banks from processing transactions to and from gambling websites).  Although the details of the bill are yet to be released, this here article contains some good analysis.

Can You Sue for a “Psychic Offense”?

The City of San Diego leases portions of Balboa Park and Fiesta Island to the San Diego Boy Scouts, which use the land to operate a camp and aquatic center.  The Boy Scouts use the leased areas for their own events but otherwise keep them open to the general public — and have spent millions of dollars to improve and maintain facilities on the properties, eliminating the need for taxpayer funding.  While the Boy Scouts’ membership policies exclude homosexuals and agnostics, the Scouts have not erected any religious symbols and do not discriminate in any way in administering the leased parklands.

Nevertheless, a lesbian couple with a son and an agnostic couple with a daughter challenged the leases under the Establishment Clauses of the U.S. and California Constitutions.  Although none of the plaintiffs has ever tried to use the parklands or otherwise had any contact with the Boy Scouts, the Ninth Circuit found they had standing to proceed with their lawsuit because they were offended at the idea of having to contact Boy Scout representatives to gain access to the facilities.  The court denied en banc review over a scathing dissent by Judge Diarmuid O’Scannlain.

The Boy Scouts have asked the Supreme Court to review the case — whose outcome conflicts with other federal courts of appeal — and Cato joined the Individual Rights Foundation in filing a brief supporting that petition.  Cato’s brief argues that the Ninth Circuit’s decision dangerously confers standing on anybody wishing to challenge the internal policies of expressive associations having any business with local government; chills public/private partnerships of all kinds for reasons disconnected from the beneficial services civic organizations provide the public; and generally represents a radical extension of standing jurisprudence — opening the courthouse doors to anyone claiming to be subjectively offended by any action and manufacturing litigation out of political debates.

The Supreme Court is likely to decide whether to take up the case of Boys Scouts of America v. Barnes-Wallace before the start of the next term this fall.

Rally to Save DC Vouchers Tomorrow. Why?

Tomorrow afternoon at 1pm, supporters of Washington DC Opportunity Scholarships will be rallying in Freedom Plaza to save the school voucher program. Why? That’s easy: Because a federal Department of Education study shows that parents are overwhelmingly more satisfied with it than they are with DC’s public schools. Because the same study shows that the program is raising student achievement above the level in the public schools. Because the children participating in it feel it is giving them a chance to realize their full potential in life – a chance that will disappear if the program is allowed to die, as they have attested in numerous YouTube videos.

The harder question is why Congress – particularly congressional Democrats led by Sen. Richard Durbin (D., Ill.) – want to kill the vouchers. Their stated reason is that it robs money from needy public schools and gives it to private schools that are already flush from lavish tuition fees.

But the voucher program not only does not take money away from DC public schools, the language of the law actually includes an extra $13 million annually for DC public schools, above their normal funding stream. As for lavish vs. needy schools, it’s true that there’s a huge gap between what is spent per pupil on public education in DC and the average tuition charged at the voucher-accepting private schools: a yawning $20,000 gap. The current year budget for the District of Columbia allocates $26,555 per pupil for k-12 education – up from $24,600 last year. Meanwhile, the Department of Education study linked to above puts the average tuition at voucher schools at $6,620. So vouchers are getting better results at one quarter the cost.

Clearly, Democrats have other reasons for opposing the voucher program, and this letter from the NEA might have a little something to do with it.

Is Aid Killing Africa?

No individual today is more effectively challenging the foreign aid establishment and the harm it inflicts on Africa than Dambisa Moyo, Zambian author of Dead Aid: Why Aid Is Not Working and How There Is Another Way For Africa. She spoke at a recent Cato book forum and has been ubiquitous in the media. For a sense of her views, here’s an interview I recommend that she recently did with the Australian Broadcasting Corporation.