Posted on 10/30/2005 2:48:40 PM PST by TheTopRead
At least that's the word I got from the friend of someone who knows someone in the WH who knows.
Okay, I realize this is not a great source -- so please go easy -- but it does sound plausible and a great way for the White House to honor Rosa Parks, an authentic african-american heroine, by nominating Janice Rogers Brown as the first african-american woman to the Supreme Court.
key word "AGENDA" would not look good...I see Jesse and Sharpie all over it.
JRB good choice...but her memorial would not be a good choice to propose it.
President Bush would do better to say on this highest memorial toward Miss Parks. I want all politics aside and give a day without any other remarks to claim the day except that of her memory.
Put aside ethical question for a while, politically, if people play the card correctly, it works. Ask Mel Carnahan's wife, Jean. Of course, it could also be overplayed, like the famous Wellstone's funeral.
If he does that, I will be truly impressed. Game, set, match, W.
Regards, Ivan
Besides, this will look like cheap theatrics.
Ted Olson is who I have wanted since the beginning. But perhaps he didn't want it. Anyway, I hope it's a man.
Ok, what did you do with Pukin Dog?
No, he means PANDERY.
JRB seems too capable, too worthy, to demean with blatant pandering.
But Republicans have learned to pander with the worst of them the last few years, so I wouldn't be surprised at all.
According to Ted Kennedy, black women are NOT suppose to be successful. They are suppose to have 8 children out of wedlock and smoke crack all day long.
Thus, she's unfit to serve.
I think that he'd be great if he wanted it & was 10 years younger...
Olsen would be fine, but at this point we need to be nominating 50 yr old and younger (I'm older than 50 btw). If Bush were to get a 4th pick or GOP Presidents were on the horizon for 20 years, then Olsen may be high on the list.
The politics at Wellstone's funeral came across as disgusting because it was. I'm weary of this. All this talk about conservatives being principled and ethical - time to live up to it. No exploiting someone's death for political purposes.
I agree. Wait for a day or a week and then spin it right.
The timing may be off, but the symbolic connection would be perfect. If nominated soon, the moment wouldn't be lost. The left would destroy itself trying to destroy JRB or her nomination. No matter where they turn, they detonate one of their own PC landmines.
Mr. Olsen would be a wonderful pick. However the cruelty of our sensational media would exploit the sadness of his beautiful wife Barbra. She would be on TV more than Mr. Olsen. I thought they had a beautiful relationship, lets not let the media destroy a beautiful memory.
God Bless TED OLSEN
You don't have to even mention Parky Parks!
Do it Subconscionsly!
Oh I pray he picks her! JRB's been at the top of my wish list from the start.
http://www.constitution.org/col/jrb/00420_jrb_fedsoc.txt
"A Whiter Shade of Pale": Sense and Nonsense —
The Pursuit of Perfection in Law and Politics
Speech of Janice Rogers Brown,
Associate Justice, California Supreme Court
The Federalist Society
University of Chicago Law School
April 20, 2000, Thursday
12:15 p.m.
Thank you. I want to thank Mr. Schlangen (fondly known as Charlie to my secretary) for extending the invitation and the Federalist Society both
for giving me my first opportunity to visit the City of Chicago and for
being, as Mr. Schlangen assured me in his letter of invitation, "a rare
bastion (nay beacon) of conservative and libertarian thought." That
latter notion made your invitation well-nigh irresistible. There are so
few true conservatives left in America that we probably should be
included on the endangered species list. That would serve two purposes:
Demonstrating the great compassion of our government and relegating us
to some remote wetlands habitat where — out of sight and out of mind —
we will cease being a dissonance in collectivist concerto of the liberal
body politic.
In truth, they need not banish us to the gulag. We are not much of a
threat, lacking even a coherent language in which to state our premise.
[I should pause here to explain the source of the title to this
discussion. Unless you are a very old law student, you probably never
heard of "A Whiter Shade of Pale."] "A Whiter Shade of Pale" is an old
(circa 1967) Procol Harum song, full of nonsensical lyrics, but
powerfully evocative nonetheless. Here's a sample:
"We skipped the light fandango
turned cartwheels cross the floor
I was feeling kinda seasick
but the crowd called out for more.
The room was humming harder
as the ceiling flew away.
When we called out for another drink
the waiter brought a tray."
There is something about this that forcibly reminds me of our current
political circus. The last verse is even better.
"If music be the food of love
then laughter is its queen
and likewise if behind is in front
then dirt in truth is clean...."
Sound familiar? Of course Procol Harum had an excuse. These were the
60's after all, and the lyrics were probably drug induced. What's our
excuse?
One response might be that we are living in a world where words have
lost their meaning. This is certainly not a new phenomenon. It seems to
be an inevitable artifact of cultural disintegration. Thucydides
lamented the great changes in language and life that succeeded the
Pelopennesian War; Clarendon and Burke expressed similar concerns about
the political transformations of their own time. It is always a
disorienting experience for a member of the old guard when the entire
understanding of the old world is uprooted. As James Boyd White
expresses it: "[I]n this world no one would see what he sees, respond as
he responds, speak as he speaks,"1 and living in that world means
surrender to the near certainty of central and fundamental changes
within the self. "One cannot maintain forever one's language and
judgment against the pressures of a world that works in different ways,"
for we are shaped by the world in which we live.2
This is a fascinating subject which we do not have time to explore more
thoroughly. Suffice it to say that this phenomenon accounts for much of
the near hysterical tone of current political discourse. Our problems,
however, seem to go even deeper. It is not simply that the same words
don't have the same meanings; in our lifetime, words are ceasing to have
any meaning. The culture of the word is being extinguished by the
culture of the camera. Politicians no longer have positions they have
photo-ops. To be or not to be is no longer the question. The question
is: how do you feel.
Writing 50 years ago, F.A. Hayek warned us that a centrally planned
economy is "The Road to Serfdom."3 He was right, of course; but the
intervening years have shown us that there are many other roads to
serfdom. In fact, it now appears that human nature is so constituted
that, as in the days of empire all roads led to Rome; in the heyday of
liberal democracy, all roads lead to slavery. And we no longer find
slavery abhorrent. We embrace it. We demand more. Big government is not
just the opiate of the masses. It is the opiate. The drug of choice for
multinational corporations and single moms; for regulated industries and
rugged Midwestern farmers and militant senior citizens.
It is my thesis today that the sheer tenacity of the collectivist
impulse — whether you call it socialism or communism or altruism — has
changed not only the meaning of our words, but the meaning of the
Constitution, and the character of our people.
Government is the only enterprise in the world which expands in size
when its failures increase. Aaron Wildavsky gives a credible account of
this dynamic. Wildavsky notes that the Madisonian world has gone "topsy
turvy" as factions, defined as groups "activated by some common interest
adverse to the rights of other citizens or to the permanent and
aggregate interests of the community,"4 have been transformed into
sectors of public policy. "Indeed," says Wildavsky, "government now pays
citizens to organize, lawyers to sue, and politicians to run for office.
Soon enough, if current trends continue, government will become
self-contained, generating (apparently spontaneously) the forces to
which it responds."5 That explains how, but not why. And certainly not
why we are so comfortable with that result.
America's Constitution provided an 18th Century answer to the question
of what to do about the status of the individual and the mode of
government. Though the founders set out to establish good government
"from reflection and choice,"6 they also acknowledged the "limits of
reason as applied to constitutional design,"7 and wisely did not seek to
invent the world anew on the basis of abstract principle; instead, they
chose to rely on habits, customs, and principles derived from human
experience and authenticated by tradition.
"The Framers understood that the self-interest which in the private
sphere contributes to welfare of society — both in the sense of material
well-being and in the social unity engendered by commerce — makes man a
knave in the public sphere, the sphere of politics and group action. It
is self-interest that leads individuals to form factions to try to
expropriate the wealth of others through government and that constantly
threatens social harmony."8
Collectivism sought to answer a different question: how to achieve
cosmic justice — sometimes referred to as social justice — a world of
social and economic equality. Such an ambitious proposal sees no limit
to man's capacity to reason. It presupposes a community can consciously
design not only improved political, economic, and social systems but new
and improved human beings as well.
The great innovation of this millennium was equality before the law. The
greatest fiasco — the attempt to guarantee equal outcomes for all
people. Tom Bethell notes that the security of property — a security our
Constitution sought to ensure — had to be devalued in order for
collectivism to come of age. The founders viewed private property as
"the guardian of every other right."9 But, "by 1890 we find Alfred
Marshall, the teacher of John Maynard Keynes making the astounding claim
that the need for private property reaches no deeper than the qualities
of human nature."10 A hundred years later came Milton Friedman's laconic
reply: " 'I would say that goes pretty deep.'"11 In between, came the
reign of socialism. "Starting with the formation of the Fabian Society
and ending with the fall of the Berlin Wall, its ambitious project was
the reformation of human nature. Intellectuals visualized a planned life
without private property, mediated by the New Man."12 He never arrived.
As John McGinnis persuasively argues: "There is simply a mismatch
between collectivism on any large and enduring scale and our evolved
nature. As Edward O. Wilson, the world's foremost expert on ants,
remarked about Marxism, 'Wonderful theory. Wrong species.'"13
Ayn Rand similarly attributes the collectivist impulse to what she calls
the "tribal view of man."14 She notes, "[t]he American philosophy of the
Rights of Man was never fully grasped by European intellectuals.
Europe's predominant idea of emancipation consisted of changing the
concept of man as a slave to the absolute state embodied by the king, to
the concept of man as the slave of the absolute state as embodied by
'the people' — i.e., switching from slavery to a tribal chieftain into
slavery to the tribe."15
Democracy and capitalism seem to have triumphed. But, appearances can be
deceiving. Instead of celebrating capitalism's virtues, we offer it
grudging acceptance, contemptuous tolerance but only for its capacity to
feed the insatiable maw of socialism. We do not conclude that socialism
suffers from a fundamental and profound flaw. We conclude instead that
its ends are worthy of any sacrifice — including our freedom. Revel
notes that Marxism has been "shamed and ridiculed everywhere except
American universities" but only after totalitarian systems "reached the
limits of their wickedness."16
"Socialism concentrated all the wealth in the hands of an oligarchy in
the name of social justice, reduced peoples to misery in the name of
shar[ed] resources, to ignorance in the name of science. It created the
modern world's most inegalitarian societies in the name of equality, the
most vast network of concentration camps ever built [for] the defense of
liberty."17
Revel warns: "The totalitarian mind can reappear in some new and
unexpected and seemingly innocuous and indeed virtuous form. [¶]... [I]t
... will [probably] put itself forward under the cover of a generous
doctrine, humanitarian, inspired by a concern for giving the
disadvantaged their fair share, against corruption, and pollution, and
'exclusion.'"18
Of course, given the vision of the American Revolution just outlined,
you might think none of that can happen here. I have news for you. It
already has. The revolution is over. What started in the 1920's; became
manifest in 1937; was consolidated in the 1960's; is now either building
to a crescendo or getting ready to end with a whimper.
At this moment, it seems likely leviathan will continue to lumber along,
picking up ballast and momentum, crushing everything in its path. Some
things are apparent. Where government moves in, community retreats,
civil society disintegrates, and our ability to control our own destiny
atrophies. The result is: families under siege; war in the streets;
unapologetic expropriation of property; the precipitous decline of the
rule of law; the rapid rise of corruption; the loss of civility and the
triumph of deceit. The result is a debased, debauched culture which
finds moral depravity entertaining and virtue contemptible.
But what if anything does this have to do with law? Quite a lot, I
think. In America, the national conversation will probably always
include rhetoric about the rule of law. I have argued that collectivism
was (and is) fundamentally incompatible with the vision that undergirded
this country's founding. The New Deal, however, inoculated the federal
Constitution with a kind of underground collectivist mentality. The
Constitution itself was transmuted into a significantly different
document. In his famous, all too famous, dissent in Lochner, Justice
Holmes wrote that the "constitution is not intended to embody a
particular economic theory, whether of paternalism and the organic
relation of the citizen to the State or of laissez faire."19 Yes, one of
the greatest (certainly one of the most quotable) jurists this nation
has ever produced; but in this case, he was simply wrong. That Lochner
dissent has troubled me — has annoyed me — for a long time and finally I
understand why. It's because the framers did draft the Constitution with
a surrounding sense of a particular polity in mind, one based on a
definite conception of humanity. In fact as Professor Richard Epstein
has said, Holmes's contention is "not true of our [ ] [Constitution],
which was organized upon very explicit principles of political
theory."20 It could be characterized as a plan for humanity "after the
fall."
There is nothing new, of course, in the idea that the framers did not
buy into the notion of human perfectibility. And the document they
drafted and the nation adopted in 1789 is shot through with provisions
that can only be understood against the supposition that humanity's
capacity for evil and tyranny is quite as real and quite as great as its
capacity for reason and altruism. Indeed, as noted earlier, in politics,
the framers may have envisioned the former tendency as the stronger,
especially in the wake of the country's experience under the Articles of
Confederation. The fear of "factions," of an "encroaching tyranny"; the
need for ambition to counter ambition"; all of these concerns identified
in the Federalist Papers have stratagems designed to defend against them
in the Constitution itself. We needed them, the framers were convinced,
because "angels do not govern"; men do.
It was a quite opposite notion of humanity, of its fundamental nature
and capacities, that animated the great concurrent event in the West in
1789 — the revolution in France. Out of that revolutionary holocaust —
intellectually an improbable melding of Rousseau with Descartes — the
powerful notion of abstract human rights was born. At the risk of being
skewered by historians of ideas, I want to suggest that the belief in
and the impulse toward human perfection, at least in the political life
of a nation, is an idea whose arc can be traced from the Enlightenment,
through the Terror, to Marx and Engels, to the Revolutions of 1917 and
1937. The latter date marks the triumph of our own socialist revolution.
All of these events were manifestations of a particularly skewed view of
human nature and the nature of human reason. To the extent the
Enlightenment sought to substitute the paradigm of reason for faith,
custom or tradition, it failed to provide rational explanation of the
significance of human life. It thus led, in a sort of ultimate irony, to
the repudiation of reason and to a full-fledged flight from truth — what
Revel describes as "an almost pathological indifference to the truth."21
There were obviously urgent economic and social reasons driving not only
the political culture but the constitutional culture in the mid-1930's —
though it was actually the mistakes of governments (closed borders, high
tariffs, and other protectionist measures) that transformed a "momentary
breakdown into an international cataclysm."22 The climate of opinion
favoring collectivist social and political solutions had a worldwide
dimension.
Politically, the belief in human perfectibility is another way of
asserting that differences between the few and the many can, over time,
be erased. That creed is a critical philosophical proposition underlying
the New Deal. What is extraordinary is the way that thesis infiltrated
and effected American constitutionalism over the next three-quarters of
a century. Its effect was not simply to repudiate, both philosophically
and in legal doctrine, the framers' conception of humanity, but to cut
away the very ground on which the Constitution rests. Because the only
way to come to terms with an enduring Constitution is to believe that
the human condition is itself enduring.
For complex reasons, attempts to impose a collectivist political
solution in the United States failed. But, the political failure was of
little practical concern, in a way that is oddly unappreciated, that
same impulse succeeded within the judiciary, especially in the federal
high court. The idea of abstract rights, government entitlements as the
most significant form of property, is well suited to conditions of
economic distress and the emergence of a propertyless class. But the
economic convulsions of the late 1920's and early 1930's passed away;
the doctrinal underpinnings of West Coast Hotel and the "switch in time"
did not. Indeed, over the next half century it consumed much of the
classical conception of the Constitution.
So secure were the intellectual underpinnings of the constitutional
revolution, so self-evident the ambient cultural values of the policy
elite who administered it, that the object of the high court's
jurisprudence was largely devoted to the construction of a system for
ranking the constitutional weight to be given contending social
interests.
In the New Deal/Great Society era, a rule that was the polar opposite of
the classical era of American law reigned. A judicial subjectivity whose
very purpose was to do away with objective gauges of constitutionality,
with universal principles, the better to give the judicial priesthood a
free hand to remake the Constitution. After a handful of gross divisions
reflecting the hierarchy of the elite's political values had been drawn
(personal vs. economic rights, for example), the task was to construct a
theoretical system, not of social or cultural norms, but of abstract
constitutional weight a given interest merits — strict or rational basis
scrutiny. The rest, the identification of underlying,
extraconstitutional values, consisted of judicial tropes and a fortified
rhetoric.
Protection of property was a major casualty of the Revolution of 1937.
The paradigmatic case, written by that premiere constitutional
operative, William O. Douglas, is Williamson v. Lee Optical.23 The court
drew a line between personal rights and property rights or economic
interests, and applied two different constitutional tests. Rights were
reordered and property acquired a second class status.24 If the right
asserted was economic, the court held the Legislature could do anything
it pleased. Judicial review for alleged constitutional infirmities under
the due process clause was virtually nonexistent. On the other hand, if
the right was personal and "fundamental," review was intolerably strict.
"From the Progressive era to the New Deal, [ ] property was by degrees
ostracized from the company of rights.25 Something new, called economic
rights, began to supplant the old property rights. This change, which
occurred with remarkably little fanfare, was staggeringly significant.
With the advent of "economic rights," the original meaning of rights was
effectively destroyed. These new "rights" imposed obligations, not
limits, on the state.
It thus became government's job not to protect property but, rather, to
regulate and redistribute it. And, the epic proportions of the disaster
which has befallen millions of people during the ensuing decades has not
altered our fervent commitment to statism. The words of Judge Alex
Kozinski, written in 1991, are not very encouraging." 'What we have
learned from the experience of Eastern Europe and the Soviet Union ...
is that you need capitalism to make socialism work.' In other words,
capitalism must produce what socialism is to distribute."26 Are the
signs and portents any better at the beginning of a new century?
Has the constitutional Zeitgeist that has reigned in the United States
since the beginning of the Progressive Era come to its conclusion? And
if it has, what will replace it? I wish I knew the answer to these
questions. It is true — in the words of another old song: "There's
something happening here. What it is ain't exactly clear."27
The oracles point in all directions at once. Political polls suggest
voters no longer desire tax cuts. But, taxpayers who pay the largest
proportion of taxes are now a minority of all voters. On the other hand,
until last term the Supreme Court held out the promising possibility of
a revival of what might be called Lochnerism-lite in a trio of cases —
Nollan, Dolan, and Lucas, Those cases offered a principled but pragmatic
means-end standard of scrutiny under the takings clause.
But there are even deeper movements afoot. Tectonic plates are shifting
and the resulting cataclysm may make 1937 look tame.
Lionel Tiger, in a provocative new book called The Decline of Males,
posits a brilliant and disturbing new paradigm. He notes we used to
think of a family as a man, a woman, and a child. Now, a remarkable new
family pattern has emerged which he labels "bureaugamy." A new trinity:
a woman, a child, and a bureaucrat."28 Professor Tiger contends that
most, if not all, of the gender gap that elected Bill Clinton to a
second term in 1996 is explained by this phenomenon. According to Tiger,
women moved in overwhelming numbers to the Democratic party as the party
most likely to implement policies and programs which will support these
new reproductive strategies.
Professor Tiger is not critical of these strategies. He views this trend
as the triumph of reproduction over production; the triumph of Darwinism
over Marxism; and he advocates broad political changes to accommodate
it.
Others do not see these changes as quite so benign or culturally
neutral. Jacques Barzan finds the Central Western notion of emancipation
has been devalued. It has now come to mean that "nothing stands in the
way of every wish."29 The result is a decadent age — an era in which
"there are no clear lines of advance"; "when people accept futility and
the absurd as normal[,] the culture is decadent."30
Stanley Rosen defines "our present crisis as a fatigue induced by ...
accumulated decisions of so many revolutions."31 He finds us, in the
spirit of Pascal, knowing "too much to be ignorant and too little to be
wise."32
I will close with a story I like a lot. It's a true story. It happened
on June 10, 1990. A British Airways jet bound for Malaga, Spain, took
off from Birmingham, England. It was expected to be a routine flight. As
the jet climbed through the 23,000-foot level, there was a loud bang;
the cockpit windshield directly in front of the captain blew out. The
sudden decompression sucked Captain Lancaster out of his seatbelt and
into the hole left by the windscreen. A steward who happened to be in
the cockpit managed to snag the captain's feet as he hurtled past.
Another steward rushed onto the flight deck, strapped himself into the
captain's chair and, helped by other members of the crew, clung with all
his strength to the captain. The slipstream was so fierce, they were
unable to drag the pilot back into the plane. His clothing was ripped
from his body. With Lancaster plastered against the nose of the jet, the
co-pilot donned an oxygen mask and flew the plane to Southampton
—approximately 15 minutes away — and landed safely. The captain had a
fractured elbow, wrist and thumb; a mild case of frostbite, but was
otherwise unharmed.
We find ourselves, like the captain, in a situation that is hopeless but
not yet desperate. The arcs of history, culture, philosophy, and science
all seem to be converging on this temporal instant. Familiar
arrangements are coming apart; valuable things are torn from our hands,
snatched away by the decompression of our fragile ark of culture. But,
it is too soon to despair. The collapse of the old system may be the
crucible of a new vision. We must get a grip on what we can and hold on.
Hold on with all the energy and imagination and ferocity we possess.
Hold on even while we accept the darkness. We know not what miracles may
happen; what heroic possibilities exist. We may be only moments away
from a new dawn.
1 James Boyd White, When Words Lose Their Meaning (Univ. of Chicago
Press 1984) p. 4.
2 Ibid.
3 F. A, Hayek, The Road to Serfdom (Univ. of Chicago Press 1994).
4 Golembiewski & Wildavsky, The Cost of Federalism (1984) Bare Bones:
Putting Flesh on the Skeleton of American Federalism 67, 73.
5 Ibid.
6 Hamilton, The Federalist Papers No. 1 (Rossiter ed. 1961) p. 33.
7 Michael W. Spicer, Public Administration and the Constitution: A
Conflict in World Views (March 1, 1994) 24 American R. of Public Admin.
85 [1994 WL 2806423 at *10].
8 John O. McGinnis, The Original Constitution and Our Origins (1996) 19
Harv. J.L.& Pub. Policy 251, 253.
9 Tom Bethell, Property Rights, Prosperity and 1,000 Years of Lessons,
The Wall Street J. (Dec. 27, 1999) p. A19.
10 Ibid.
11 Ibid.
12 Ibid.
13 John O. McGinnis, The Original Constitution and Our Origins, supra,
19 Harv. J. L.& Pub. Policy at p. 258.
14 Ayn Rand, Capitalism the Unknown Ideal (New American Lib. 1966) pp.
4-5.
15 Ibid
16 Jean Francois Revel, Democracy Against Itself (The Free Press 1993)
pp. 250-251.
17 Id. at p. 251.
18 Id. at pp. 250-251.
19 (198 U.S. at p. 75.)
20 Clint Bolick, Unfinished Business (1990) p. 25, quoting Crisis in the
Courts (1982) The Manhattan Report on Economic Policy, Vol. V, No. 2, p.
4.
21 Jean Francois Revel, The Flight From Truth (Random House N.Y. 1991)
p. xvi.
22 Id. at p. xxxvii.
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