I'm a capitalist

You are a Social Conservative (38% permissive) and an... Economic Conservative (88% permissive) You are best described as a: Capitalist Link: The Politics Test on Ok Cupid Also: The OkCupid Dating Persona Test

The neat thing is that my point is right in the middle of George W. Bush's forehead, slightly to the right (which is really left) of Reagan. At least, that is where the creators of this test think Reagan and W are. Bush is far more economically liberal than me. Prescription drugs, farm subsidies, no child left behind, $250 billion for Katrina, etc. All nonsense that I wouldn't even think twice about vetoing.

My final thoughts on John Roberts

Now that John Roberts has passed out of committee with a 13-5 vote, I should let all 12 of you know my thoughts. Am I still skeptical? Yes. Why? Because I don't know whether he'll vote to overrule the multitude of idiotic liberal decisions over the past few decades. However, even Scalia doesn't vote to overrule everything - even decisions he disagrees with - and expresses a healthy respect for precident. I'm more in the Thomas camp in that bad decisions left un-overruled are left as precident for more bad decisions and extensions of their flawed reasoning.

With statutes, overruling isn't as necessary because Congress can take care of it, though there are exceptions. For example, every "effects" test not expressly stated in the statute should be rejected. Indeed, an "effects" test is constitutionally suspect in the first place as a violation of due process - the real "process" kind, i.e., it is impossible to know in advance that my racially-neutral policy will disproportionately affect some race or another and to punish me for unforseeable consequences is a violation of due process.

For matters of Constitutional interpretation, if it was wrongly decided in the first place it should be overruled. The Constitution is dead.

Back to Roberts. Do I support his confirmation? Enthusiastically, yes. I have a high degree of confidence that he will not pull a Kennedy, Souter or O'Connor and extend liberal nonsense to Constitutional interpretation. While he may not strip it away as much as I would like, he showed a tremendous intellect and a tremendous ability not to be bullied or swayed from his own beliefs. I have a high degree of confidence that he will not "grow" on the bench. In other words, I see him as a stong vote against recognizing a "right" to gay "marriage" in the Constitution and other such nonsense that will undoubtedly come before him in the next few years.

Moreover, when asked about Roe v. Wade, he gave the right answers. Is it a precident of the Court? Yes, but only insofar as every not-yet-overruled prior decision of the Supreme Court is a "precident." Is it entitled to respect? Yes, but only because other judges thought about it and that all other judges are entitled to some respect. Is Roe v. Wade entitled to as much respect as, say, Brown v. Board of Education? He did not say. Moreover, he expressed a clear and unwavering rejection of the notion of citation to foreign law in interpreting the Constitution. That is the current big legal debate and his confirmation as Chief Justice should put a kiabosh on such nonsense.

I once heard a commentator say that the object of a confirmation hearing is to get confirmed. It is not a forum for pontificating or debating. Roberts said exactly what he needed to to get confirmed. He said exactly what I would have said, and that is the highest compliment I can give him - he's at least as smart as me. (It is, of course, possible that he's smarter than me - he didn't face a very difficult challenge from the legal minds questioning him and he was much better prepared than they.)

The woman just has a way with words

I truly love La Shawn Barber's corner. I only read it occasionally, though, as she seems to have a life (not unlike me) and doesn't post nearly as often as group blogs like Wizbang! or Powerline. But I am never disappointed when I do visit. Here is yet another turn of phrase that absolutely destroys the race hustlers:

"Little did our forbears realize that as they fought to dismantle government-mandated racial discrimination, to be equal before the law, and to gain the right to be judged as individuals, 40 years later their children and grandchildren would fight to maintain government-mandated racial discrimination, acquire skin color privileges before the law, and forfeit the right to be judged as individuals."

The Pledge of Allegiance is still unconstitutional - at least in the Ninth Circus, er Circuit

A Federal judge in, where else, San Francisco, ruled today - consistent with what he believes to be binding Ninth Circuit precident - that the Pledge of Allegiance is unconstitutional. For those of you who may be puzzled how the Pledge could possibly be unconstitutional, its because it has that nasty word "God" in it.

Now here's the question for you lawyers that I might decide to answer later: Is a Circuit Court opinion binding precident if the U.S. Supreme Court reverses the decision on jurisdiction grounds? I highly doubt it. Of course, the A.P. reporter may simply be legally unsophisticated when he says this:

"[Judge] Karlton said he was bound by precedent of the 9th U.S. Circuit Court of appeals, which in 2002 ruled in favor of Sacramento atheist Michael Newdow that the pledge is unconstitutional when recited in public schools."

The actual opinion may not have acknowledged the Newdow case in particular - i.e., the one that was reversed by the U.S. Supreme Court because Mr. Newdow lacked standing to sue on behalf of his daughter over whom he did not have custody and she and mom refused to join the lawsuit - but rather all the other Ninth Circuit authority (and, I must admit, the muddled, confusing and inconsistent U.S. Supreme Court authority) that the Newdow opinion cited.

Like I said, I'll get to it later.

More MSM nonsense/liberal bias

As my post below indicates, I spent a large amount of time watching the Roberts confirmation hearings replayed on C-SPAN tonight. What I got from it was vastly different from what is being reported. The Yahoo! news lead headline of an AP story is "Roberts Rebuffs Democrats' Questions."

This is nonsense. I watched three Democrat Senators' question and answer sessions and Roberts declined to answer specific questions only twice - when asked whether he would overrule Roe v. Wade and the constitutionality of certain provisions of the Voting Rights Act that are up for renewal this year in Congress. Both times Roberts clearly stated his rationale that these questions were likely to come before the Supreme Court, indeed both issues had currently pending cases. Neither time did any Senator disagree or press Roberts for an answer. Senator Biden attempted to argue that Justice Ginsburg answered specific questions about specific cases that had already been decided, but of course Roberts did this, too, specifically saying that he agreed with the decision and reasoning of Brown v. Board of Education and agreed with prior Supreme Court decisions upholding the constitutionality of the 1965 Voting Rights Act (as it exists today, not how it may exist after it is revised/amended/extended).

Roberts answered nearly all of the Democrats' questions. No rational reporter simply reporting the facts would write a headline summing up a day's worth of mostly answers as "Roberts Rebuffs Democrats' Questions." Such a headline would only come from a partisan Democrat hack. That is what the MSM is and that is what the AP is.

Balls and strikes? You becha!

I've been watching replays of Judge Roberts' Senate confirmation hearings this evening and I have many thoughts that I hope to blog about later. For now, I want to point out one response I wish Judge Roberts had given to an opening comment by Senator Herb Kohl from Wisconsin (hence, the "You becha!" from the title). It seems that the Democrats are trying to attack the aptness of Judge Roberts' baseball umpire analogy and Sen. Kohl's particular attack was to point out that different umpires have different strike zones and different basketball referees call different games.

Point conceded. Roberts stayed on message, perhaps politically savvy, and did not address the question directly. What Roberts should have said to this observation is that no one thinks it is a good thing to have different umpires with different strike zones and different referees with a different sense of how hard you have to hack Shaq for it to be a foul. Moreover, no one thinks it is a good thing for umpires and referees to stray away from the written rules of the games. Indeed, several years ago, Major League Baseball was so concerned about certain umpires, shall we say, creative strike zones (e.g. Eric Gregg) that they coralled all the umpires, showed them the actual written rule describing the strike zone, and told them that they would be watched and appropriately rewarded/disciplined if their strike zone did not comport with the strike zone described in the rule book.

What Herb Kohl celebrates is the idea that judges should be courageous and strike new ground when they think it is necessary and appropriate, even if this means going outside the written rules - i.e., the Constitution. In this respect, he tried to characterize Brown v. Board of Education as such a decision. Judge Roberts appropriately rebuffed this attept and characterized Brown as more consistent with the original meaning of the 14th Amendment. But I wonder what Senator Kohl would say if, in the Rose Bowl when Winconsin was playing UCLA, the referees struck new ground and stopped enforcing the college rule that a ball carrier is down when a knee touches the ground in favor of the bold and exciting NFL rule that a ball carrier must be down by contact. I wonder what his reaction would be if this extra-statutory rule change occurred after a UCLA player tripped on the one yard line on his way to a sure touchdown but rolled in the endzone afterwards without being touched.

Whither global cooling?

I was perusing Jay Nordlinger's Impromptus today. The second to last letter therein explains the reader's stock response to his liberal associates' constant blaming of every malady on global warming is ""We would not have global warming today if Al Gore had been elected president." The reader continues, "Never once has a person even asked whether I'm kidding."

I believe that the point of the letter is to point out the reflexive unthinking of those on the left. After all, based on the claims of the global warming zealots, absolutely nothing Al Gore could have done in five short years in office would have completely ended global warming. Why, even Kyoto would only slow it down a bit - global warming is here to stay.

I had a different take on the letter, one I put in an email to Mr. Nordlinger reprinted below. I wonder if he'll post it in his next Impromptus.

Jay,

Love the Impromptus. In your article today about your Bay Area emailer’s response to global warming fanatics, "We would not have global warming today if Al Gore had been elected president!", I was struck by a succession of thoughts I’d like to share. My first was that this sentiment was not a joke, but literally true. Kind of like the fact that we didn’t have homelessness in America when Clinton was President, if Al Gore was elected, surely he would end global warming and/or the left would stop using it as a political bogeyman for all seasons. Then I thought, no, the left would never give up its panacea for capitalism; they’d milk global warming ‘till the end of time. It just wouldn’t be the ever present scare tactic (scare tactics tend to get the public interested in actual action and/or accountability); rather, it would continue to be the justification for all things liberal, “well, we can't let you build power plant here, global warming and all,” or “of course we have to raise taxes on the rich, with less money to spend on SUVs they won’t use as much energy and that will help stem global warming.”

Then I thought, whatever happened to the global cooling nonsense of the ‘70s? The argument was the same – burning fossil fuels expended particulates into the air that blocked sunlight causing the earth to cool plunging us into the next ice age. Then I thought of two explanations why global cooling did not have the same political impact as global warming today – one, the media/academia/Democrat conspiracy was not nearly as well-organized in the ‘70s and thus they simply could not pull it off, then two, global cooling proponents made the mistake of putting forth an actual testable prediction readily observable by the general public, an ice age. Global warming proponents are much more sophisticated. There are no predictions that the general public can readily perceive. When it’s hot, that’s global warming for you. When it’s cold, global warming melted the polar ice caps causing cold water to flow toward the equator and mess up the ecosystem. In short, the mistake the first time around was treating global cooling like an actual science, making testable predictions and all. Global warming is devoid of that hindrance.

Gay marriage in California, part II

Since my last post weighing in on gay marriage, not much has happened on the California front. Until this. The California Senate has apparently voted to allow same-sex marriage. How, you say, given that Proposition 22 was overwhelmingly passed by the citizens of California in 2000? Let me explain (with many hat tips to Patterico, Dafydd and XRLQ):

California citizens may propose statutes or Consitutional amendments under the initiative process of Article 2, Section 8 of the California Constitution, which reads:

CALIFORNIA CONSTITUTION ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL SEC. 8.

(a) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.

(b) An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5 percent in the case of a statute, and 8 percent in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election.

(c) The Secretary of State shall then submit the measure at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election. The Governor may call a special statewide election for the measure.

(d) An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.

(e) An initiative measure shall not include or exclude any political subdivision of the State from the application or effect ofits provisions based upon approval or disapproval of the initiative measure, or based upon the casting of a specified percentage of votes in favor of the measure, by the electors of that political subdivision.

(f) An initiative measure shall not contain alternative or cumulative provisions wherein one or more of those provisions would become law depending upon the casting of a specified percentage of votes for or against the measure.

A carefull reading of Article 2, section 8(b), will reveal that the only real difference between an initiative to add a statute or one to amend the Constitution is in the number of signatures you need to get your initiative on the ballot: 5% and 8%, respectively. Once you have your signatures, though, an initiative passes via majority vote whether it amends the Constitution or simply adds a statute.

For initiative statutes:

CALIFORNIA CONSTITUTIONARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL SEC. 10.

(a) An initiative statute or referendum approved by a majority of votes thereon takes effect the day after the electionunless the measure provides otherwise. If a referendum petition isfiled against a part of a statute the remainder shall not be delayedfrom going into effect.

(b) If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.

(c) The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute thatbecomes effective only when approved by the electors unless theinitiative statute permits amendment or repeal without theirapproval.

(d) Prior to circulation of an initiative or referendum petitionfor signatures, a copy shall be submitted to the Attorney General whoshall prepare a title and summary of the measure as provided by law.

(e) The Legislature shall provide the manner in which petitionsshall be circulated, presented, and certified, and measures submittedto the electors.

For initiative constitutional amendments:

CALIFORNIA CONSTITUTION ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION SEC. 3.

The electors may amend the Constitution by initiative.

CALIFORNIA CONSTITUTION ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION SEC. 4.

A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise. If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.

Ok, now that we have the basics down, let's address Proposition 22, which was an initiative statute. Under Article 2, section 10(c), "The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval." (Emphasis added.)

What this means, as Dafydd ably points out, is that the Legislature cannot amend or repeal an initiative statute on its own. Rather, it must first vote to repeal or amend it, and then put that up for a vote by the citizens. What does it mean to "amend or repeal" an initiative?

"[A]ny change of the scope or effect of an existing statute, whether by addition, omission, or substitution of provisions, which does not wholly terminate its existence, whether by an act purporting to amend, repeal, revise, or supplement, or by an act independent and original in form [is an amendment]. [Citation.] A statute which adds to or takes away from an existing statute is considered an amendment. [Citation.]" Mobilepark West Homeowners Assn. v. Escondido Mobilepark West, 35 Cal. App. 4th 32, 40 (1995) .

My first thought upon reading the California Constitution was that the press is just stupid, and that the vote by the California Senate was to repeal the statute and thereafter place the matter to a state-wide vote by the citizens, as required by Article 2, section 10(c). Secure in my belief that the citizens would never vote to repeal what they had approved five years earlier by over 60%, I figured the whole thing was an exercise in futility, but at least procedurally legitimate.

But that is not what happened. The California Senate bill just approved says nothing about repealing Proposition 22 or putting the matter up for a state-wide vote. Rather, the California Senate hopes to win on a technicality with the help of the Courts. From the AP article reporting the vote:

"Proposition 22 was approved by California voters in 2000. The initiative added a section to the state Family Code stating that 'only marriage between a man and a woman is valid or recognized in California.'

It was put on the ballot when it appeared that Hawaii might legalize gay marriages and was intended to prevent California from recognizing gay marriages performed elsewhere.

Leno's bill would amend a separate section of state law that bars the state from recognizing same-sex marriages performed in California."

Get that? The bill amends a different section of state law, so it's not an "amendment" and does not "repeal" Proposition 22. Article 2, section 10(c) therefore does not come into play, so you - the citizens - don't get to vote on it!

This is nonsense. As XRLQ points out, there has already been a California Court of Appeal ruling holding that Proposition 22 unambiguously prohibits California from recognizing same sex marriages performed both out of state and in California. From Knight v. Superior Court, 128 Cal. App. 4th 14, 23-24 (2005) :

"The plain language of Proposition 22 and its initiative statute, section 308.5, reaffirms the definition of marriage in section 300, by stating that only marriage between a man and a woman shall be valid and recognized in California. This limitation ensures that California will not legitimize or recognize same-sex marriages from other jurisdictions, as it otherwise would be required to do pursuant to section 308, and that California will not permit same-sex partners to validly marry within the state. "

Thus, without help from the Courts, this Senate bill is doomed. To recognize same sex marriage in California via this bill, the California Supreme Court will have to overrule Knight v. Superior Court, find that Proposition 22 is ambiguous, find that it only prohibits recognition of same sex marriages performed out-of-state, says nothing about same-sex marriages perforemd in California, and therefore find that the Senate bill is not an amendment of Proposition 22.

The last wrinkle in the saga is that since Proposition 22 was a mere initiative statute, some activist judge can rule that it violates the California Constitution, which has already happened. Hopefully, the California Supreme Court will directly rule on that in the litigation currently pending spawned by Gavin Newsome's nonsense in San Francisco. If the California Supreme Court decides that banning gay marriage is unconstitutional, then the citizens can still amend the California Constitution via initiative, and still win with a mere majority vote, they'll just have to get more signatures than last time to get it on the ballot.