Two Good Articles

Max Boot, previously at the Wall Street Journal and now at the Washington Post, analyzes the Kavanaugh nomination. Here is the gist:

Aside possibly from a few members of the Federalist Society, which helped to put together President Trump’s master list of court nominees, few people, including the president himself, are interested in judicial philosophy. They’re interested in political outcomes. Thus conservatives are being disingenuous when they claim, as does former prosecutor Andrew McCarthy, that they simply want judges who are “committed to construing the law as it is written.”

I made a similar argument in a 1998 book on the judiciary. But I now realize there is no Platonic ideal of interpretation that allows judges to unerringly discern the original meaning of the Constitution or the correct interpretation of often vaguely worded statues. All sorts of difficulties arise: What if, as was often the case, one Founding Father disagreed with another? What if, as is also frequently the case, the court has to rule on matters that, because of technological or social developments, were unforeseen by the founders? And what if a justice’s interpretation of “original intent” is at odds with decades of precedents — is it “conservative” to overturn the prevailing line of cases?

You can read the entire oped here.

 

For those who have seen, or are planning to see, Operation Finale, about the capture of Adolph Eichmann, Andrew Nagorski provides the historical background at The Daily Beast. Here is the gist:

[C]ompared to earlier fantasy blockbusters about Nazi hunting like The Boys from Brazil and Marathon Man and several TV movies, this new entry represents a serious effort to reconstruct the most famous kidnapping of the modern era. At the same time, it can’t resist adding some flourishes that amount to dramatic overkill.

It may be a cliché, but fact often is stranger than fiction—and, in the Eichmann case, this was particularly true. I discovered as much when I interviewed Rafi Eitan, the commander of the operation, and his deputy Avraham Shalom in Tel Aviv in 2014 while working on my book The Nazi Hunters. Thinking back on their accounts along with the memoirs provided by members of the team who died earlier, I can’t help wonder why Hollywood has never understood that the most dramatic tale would be the one that adhered most closely to the facts.

You can read the entire article here.

Comments

[Jeff Lipshaw]

I don't understand why nobody has mentioned the fact that Isser Harel wrote the story of the kidnapping in "The House on Garibaldi Street," and that there has already been a movie version quite faithful to the book (starring among others, Chaim Topol of Tevye fame).

[anon]

As usual, so much misinformation.

A sample:

"Yet in 2000, he and four other conservative justices decided that the 14th Amendment gave them the right to stop the Florida recount and thus make George W. Bush president. Did anyone in 1868 have that outcome in mind?"

Actually, seven on the equal protection argument. On "stopping the recount" the answer is probably yes.

"And how is it that no court in the previous 218 years had ever discovered this “right” if it had been there from the beginning?"

Nonsense. As Scalia noted:

"By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999) , cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2–4 (1768). Other contemporary authorities concurred ... Our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the Second Amendment . Four States adopted analogues to the Federal Second Amendment in the period between independence and the ratification of the Bill of Rights. Two of them—Pennsylvania and Vermont—clearly adopted individual rights unconnected to militia service. Pennsylvania’s Declaration of Rights of 1776 said: “That the people have a right to bear arms for the defence of themselves, and the state … .” §XIII, in 5 Thorpe 3082, 3083 (emphasis added). In 1777, Vermont adopted the identical provision, except for inconsequential differences in punctuation and capitalization. See Vt. Const., ch. 1, §15, in 6 id., at 3741. ... Between 1789 and 1820, nine States adopted Second Amendment analogues. Four of them—Kentucky, Ohio, Indiana, and Missouri—referred to the right of the people to “bear arms in defence of themselves and the State.” See n. 8, supra. Another three States—Mississippi, Connecticut, and Alabama—used the even more individualistic phrasing that each citizen has the “right to bear arms in defence of himself and the State.” See ibid. Finally, two States—Tennessee and Maine—used the “common defence” language of Massachusetts. See Tenn. Const., Art. XI, §26 (1796), in 6 Thorpe 3414, 3424; Me. Const., Art. I, §16 (1819), in 3 id., at 1646, 1648. That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right. ... In Nunn v. State, 1Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. ... Likewise, in State v. Chandler, 5La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States ..."

And so forth. Can one say, honestly, that Scalia "discovered" a right that no court had in over 200 years? If this is demonstrably not correct, what should we call this "news"?

"Both liberal and conservative judges legislate, to a greater or lesser degree, because there is usually no right answer to complex questions of constitutional interpretation."

This is true. But, let's not pretend that judicial "legislation" occurs only along partisan lines, and let's not pretend that all the close decisions cited by the author were typical or usual or representative of any "conservative" or "liberal" principle at work.

As argued previously in these pages, we must compare the judicial "philosophies" of those we condemn to those we admire. Compare, e.g. an Obama/Sotomayor judicial "philosophical" imperative (empathy should guide decision-making, based on the judge's life experiences) to the theories you choose to condemn. This would be more helpful than odd (and inaccurate) recitations of half-truths and characterizations of outlier decisions that the author does not even claim were wrongly decided.

[Betsy DeVos Save our Kids Foundation]

An activist, legislating from the Bench court found a that an individual has the absolute right to purchase and own an Uzi. So what we have now is that any mentally deranged white male who resents women cause he can't get laid can do a mass shooting after mommy buys him an AR-15 or he answers a few questions at the gun 'n pawn.